I am in Florida, if you have a trust, do you need a durable power of attorney?

UPDATED: Oct 2, 2022

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I am in Florida, if you have a trust, do you need a durable power of attorney?

My dad did the trust, he is deceased. My mother was next in line so she is the
trustee. She is 89 years old. We are wondering if she needs a durable POA with
myself daughter being named or, because there is a trust and myself being next
in line to take over the trust, does she even need one. My understanding is if
she is unable to continue as trustee, such as if her mind goes, etc, we need a
letter from a physician and I would then be able to take over the trust since I
am next in line with my brother and sister next in line after me.

Asked on August 29, 2019 under Estate Planning, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

A POA will not affect who is the trustee or who can act as the trustee: only the person named as trustee or any persons named as successor to that person can be trustee. The trust is created by the "settlor" of the trust, and only he decides who will be the trustee or any back-up trustee; a trustee cannot, via POA, effectively make another person not named by the settlor the trustee (or even make a person named by the settlor the trustee until and unless the trust's conditions for making that person the trustee are fulfilled). So if you are next in line to take over, then not only do you not need a POA, since you have been named as the next successor, but the POA would not make any difference, anyway. 
The above said, if your mother has any income or assets which are not part of the trust, if she may need you to manage or control them for her if she becomes incapable, she should give you a POA for herself, not the trust, while she still can.

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