Durable power of attorney agent has no authority over trust account
Question: I have a durable power of attorney for my aunt, who is 95. The document specifically mentions all types of trust accounts. Yet when I took it to her bank, they refused to list me as an agent for her accounts, which are titled in the name of her trust. I was told that Florida law does not empower an agent under a durable power of attorney to manage accounts held in the name of a trust. Is this correct?
Answer: What the bank told you is correct. Although on rare occasions a financial institution may permit it, generally speaking an agent under a durable power of attorney (DPOA) has no authority over a trust account. The only ones who have that power are the co-trustee and successor trustee when they are serving in that capacity.
There are two conditions that must be met that would allow an agent under a DPOA to act with authority over a trust:
1. The trust document must specifically state that the agent under the DPOA may access the trust account; AND
2. The DPOA must specifically authorize the agent to act over a trust account.
It is possible (although I’d venture to say a long shot) that your aunt’s trust may meet condition (1). If the trust is available to you, check it out. If you see that it indeed authorizes the DPOA agent to act, then you can bring the trust document, along with the durable power of attorney, to the bank. Under Florida law, they should then allow you to access your aunt’s trust account.
If, on the other hand, her trust does not include that provision and your aunt is still competent, she could take steps to modify her trust making you cotrustee.
Joseph Karp, a member of the Florida and New York Bars, is a Nationally and Florida Bar Certified Elder Law Attorney and founder of The Karp Law Firm, located in Palm Beach and St. Lucie counties. The firm assists clients with wills, trusts, Medicaid and VA benefits planning, special needs planning, asset preservation, probate/trust administration and estate litigation.