Does a Power of Attorney Have the Right to Change a Living Trust?

When you sign a power of attorney, you give some or all of your authority to someone else.

When you sign a power of attorney, you give some or all of your authority to someone else.

A power of attorney is a document that authorizes another person to act legally on your behalf. Some powers of attorney only authorize action in specific situations, such as if you are incapacitated, while others give broad powers with few limitations. The person to whom powers are transferred is called an attorney-in-fact. Your attorney-in-fact's ability to alter your trust depends on the specific powers you've given her and the type of trust.

Types of Powers of Attorney

Power of attorneys come in a wide variety of forms, from durable ones that last forever to time-specific documents with an expiration date. What matters most, though, is whether the power of attorney is limited or general. A limited power of attorney only authorizes your agent to do tasks specifically outlined in the document, while a general power of attorney authorizes your attorney-in-fact to act on your behalf in virtually any situation. If your power of attorney contains language limiting powers until you are incapacitated, then your agent won't be able to change your trust while you're competent to make decisions.

Types of Living Trusts

Living trusts come in two varieties. A revocable trust is one you can change or even cancel, while an irrevocable trust can't be changed by you or your agent. If your trust is irrevocable, any power of attorney won't be able to alter it no matter what authority you give her. All trusts become irrevocable upon your death, so if you want your attorney-in-fact to change your revocable trust, you need to do it while you're alive and competent to make such decisions.

Revoking Powers of Attorney

If you're concerned about your attorney-in-fact changing your trust without your permission, you can revoke the power of attorney with the help of a lawyer. You can also establish an expiration date for your power of attorney if you're concerned about giving your agent unlimited and permanent powers. If your agent abuses her privileges, and you're concerned about her accessing your trust, contact both the trustee and the organization that holds the money or property in trust to alert them to the problem.

Changing a Trust

If your attorney-in-fact wants to change the trust, she'll have to provide a copy of a signed, notarized power of attorney, as well as one or more forms of photo identification. You don't have to be present or give your explicit permission on the day the trust is altered. This issue can become salient if you are incapacitated and are no longer able to revoke the power of attorney, so consider establishing an expiration date or itemizing a limited list of specific tasks your agent can perform. Have your lawyer add this list to the power-of-attorney document.

 

About the Author

Van Thompson is an attorney and writer. A former martial arts instructor, he holds bachelor's degrees in music and computer science from Westchester University, and a juris doctor from Georgia State University. He is the recipient of numerous writing awards, including a 2009 CALI Legal Writing Award.

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