Written by Benjamin Kingsley

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Do you need a power of attorney form? We make a do-it-yourself power of attorney: finance power of attorney or healthcare power of attorney.

Generally speaking, a power of attorney (POA) does not have the authority to modify or change a living trust created by the principal unless explicitly granted such power. The ability of a power of attorney to alter a living trust depends on several factors, including the specific language in the POA document, the type of POA, and the laws of the state where the principal resides.

In most cases, a standard power of attorney does not automatically include the authority to modify trusts. This is because trusts are separate legal entities from the principal, and the power to alter them is typically reserved for the trustee or the trust creator (grantor). The principal would need to explicitly grant this power in the POA document for the agent to have such authority.

If the principal wishes to allow their agent to modify their living trust, they should include specific language in the POA document granting this power. It is advisable to consult with an experienced estate planning attorney to ensure that the proper language is included and that the principal’s intentions are clearly stated.

It is important to note that even if a POA includes the authority to modify a trust, there may be limitations on what changes can be made. For example, some states have laws that restrict an agent’s ability to make gifts or transfer assets out of a trust, even if the POA grants broad powers. Additionally, the terms of the trust itself may prohibit or limit modifications by anyone other than the grantor.

In situations where the principal becomes incapacitated, a durable power of attorney may come into effect. However, even a durable POA does not automatically grant the authority to modify trusts unless specifically stated. It is crucial for individuals creating estate plans to carefully consider whether they want their agent to have the power to alter their living trust and to clearly express their wishes in both the POA and trust documents.

Do you have questions about or need assistance with a power of attorney? Please click here to email us at contact@legalandme.com.

Do you need a power of attorney form? We make a do-it-yourself power of attorney: finance power of attorney or healthcare power of attorney.