Can a Guardian Amend a Ward’s Revocable Trust?

When a person (the “grantor”) creates a revocable trust, the grantor can generally amend or revoke the trust at any time prior to the grantor’s death. What if the grantor becomes incapacitated? Can the guardian of the grantor amend the trust?

To find these answers you must read the trust. If the trust provides that the trust becomes irrevocable, then the guardian generally can not amend the trust. But what if the trust is silent?

In Rene v. Sykes-Kennedy, the grantor, Lillie S. White, (“White”) created a trust in 2006 in which she named her granddaughter, Rene, as the successor trustee. Unfortunately, in 2011, a court found White incapacitated and appointed Janie Sykes-Kennedy (“Kennedy”) as her limited guardian. The court determined White could not exercise her right to contract, sue or defend lawsuits, manage property, make any gift or disposition of property, consent to medical treatment, or make decisions about her social environment.

In August 2013, Kennedy petitioned the guardianship court to amend the 2006 revocable trust to appoint herself as successor trustee. She alleged it was necessary for her to be able to access assets in the trust to provide care for White and that White had expressed concern that her property was being controlled by Rene.

The trial court granted Kennedy’s petition, finding that it was in White’s best interest to have Kennedy appointed as trustee.

Rene argued that Kennedy had no right to make such an amendment because Section 736.0201(l) of the Florida Statutes provided that judicial proceedings concerning a trust were to be commenced by filing a complaint.

The court rejected Rene’s argument because Section 736.0602(6) of the Florida Statutes permits a guardian of the property to exercise a grantor’s power to amend a trust.

Section 744.441(2) of the Florida Statutes provides that a guardian can exercise any power as trustee that the ward might have lawfully exercised as trustee IF the best interest of the ward requires such action. The court agreed with Kennedy and she was appointed as trustee.

ADVICE: If the power of attorney or a guardian needs to exercise a power to amend a trust document, carefully review the Florida Statutes to be sure that such an amendment is necessary and authorized. The key is going to be whether the amendment is in the best interest of the ward.
 
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