Florida residents are free to build estate planning strategies using different legal tools. Considering a solid estate plan must provide rapid solutions in the event of incapacitation, living trusts and powers of attorney (POAs) are efficient tools for this type of situation.
Is it possible to combine living trusts and POAs in Florida estate planning? Keep reading to find out.
Florida Estate Planning – Living Trusts vs. Power of Attorney
A trust is a fiduciary relationship in which the trustor (the person creating the trust) transfers the ownership of assets to a trustee (fiduciary) for the benefit of one or multiple beneficiaries. A living trust is a revocable trust created during the trustor’s lifetime.
Revocable trusts can be modified, amended, or revoked until the trustor’s death. This type of trust permits the trustor to name him or herself as the trust’s trustee, maintaining control over the assets held in the trust while no longer holding their nominal ownership.
In such cases, the trustor must designate a successor trustee. If the original trustee becomes incapacitated or dies, the successor trust immediately assumes control of the trust administration.
As the successor trustee owes a fiduciary duty to the trust and its beneficiaries, he or she can act only according to provisions in the trust instrument.
Many Florida residents also include power of attorney (POAs) in their estate planning strategies. A power of attorney (POA) is a legal document used to designate a person (the agent) to act on your behalf on specific matters.
Different types of POAs serve distinct purposes under Florida law. For example, a durable power of attorney (DPOA) remains effective until the death of the person who created the document (the principal).
If the principal becomes mentally or physically unable to handle his or her own affairs, the agent must assume control of the principal’s finance, health care, or any matters outlined in the document.
Living Trust and POA in Florida – Attention to Detail
While it is possible to combine living trusts and POAs within the same estate plan, the best approach is to consult with an expert attorney before signing the paperwork. Depending on how these tools are combined, it may result in unexpected issues.
For example, let’s say a Florida resident created a living trust and designated himself as the trustee. The trustor/trustee decided to name his son as the successor trustee and sign a POA naming him as his agent.
In the POA, the trustor designated his son to take care of his financial affairs in the event of incapacitation.
When funding the trust, the trustor decided to designate his bank account to the trust to avoid probate. Unexpectedly, the trustor suffered a stroke and went to the hospital unable to communicate or handle his affairs.
While the POA designated the trustor’s son as his agent in case of incapacitation, only the trust’s trustee can access the funds held in the trust. In such a case, the trustor must be removed as the principal trustee to permit successor trustee’s access to the funds in the trust account.
Combining living trusts and POAs requires expert legal guidance. Consult with an experienced Florida attorney to identify the best strategy for your case.