A Florida appeals court rules that a durable power of attorney does not authorize the attorney-in-fact to amend a trust where by the trust's terms the grantor "clearly and unambiguously" reserved that right to herself. Gurfinkel v. Josi (Fl. App. 3rd Dist., No. 3D06-1616, Dec. 12, 2007).
Goldie Marmor established a trust, consisting primarily of twenty-five shares of stock in a family corporation, and executed a durable power of attorney. Her husband, Marten, was appointed as trustee and as attorney-in-fact under the durable power of attorney. Mrs. Marmor reserved the right to revoke, amend or withdraw from the trust and she directed that at her death the stock was to be distributed to the couple's only daughter, Rose Gurfinkel.
In 2000, purportedly acting under the authority of the durable power of attorney, Mr. Marmor amended the trust to "delete"Â the stock and later transferred the shares to one of the couple's two sons, Joseph. In 2001, after Mr. Marmor became incapacitated, the three children succeeded him as co-trustees. Following Mrs. Marmor's death in 2003, suit was brought over the propriety of Mr. Marmor's amendment.
Ms. Gurfinkel and her other brother, Stuart, argued the amendment was prohibited by the trust, which provided that "[n]either the conservator nor the guardian of the grantor, nor any person other than the grantor . . . may exercise any of the rights reserved to the grantor by the provisions of this item." Joseph countered that the amendment was authorized by a provision in the durable power of attorney that allowed the attorney-in-fact to transfer assets. The trial court entered summary judgment for Joseph, finding that the durable power of attorney authorized Mr. Marmor to remove the stock from the trust. Rose and Stuart appealed.
The Court of Appeals of Florida reverses, finding that the trust controls and "unambiguously provides that the holder of a durable power of attorney cannot withdraw trust funds." Moreover, the durable power of attorney requires express authority to allow the withdrawal of trust funds.
To download the full text of this decision in PDF format, go to: https://www.3dca.flcourts.org/Opinions/3D06-1616.pdf.
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