In short: Yes, with court approval: a guardian of the property can exercise the ward’s power to amend a revocable trust, including to change the trustee, when the ward’s best interest requires it. In Rene v. Sykes-Kennedy, the guardianship court let the limited guardian of an incapacitated Orange County woman amend her revocable trust to appoint the guardian as trustee instead of the granddaughter the trust named. The Fifth District affirmed in a written opinion on January 2, 2015, and later denied rehearing.
The Facts
Lillie S. White created a revocable trust in 2006. It provided that her granddaughter, Lisa Rene, would become trustee if White became incapacitated.
In June 2013, the Orange County circuit court found White incapacitated due to senile dementia and appointed her sister, Janie Sykes-Kennedy, as limited guardian. White was found unable to contract, sue or be sued, manage property, make gifts, consent to medical treatment, or decide her social environment.
In August 2013, the guardian petitioned in the guardianship case for authority to amend the trust to appoint herself trustee. She said she needed access to trust assets to care for White, and that White had expressed continued worry that Rene was controlling her property. After an evidentiary hearing, the court granted the petition, finding that the guardian’s education, business experience and relationship with White made the change in White’s best interest. It allowed only that one amendment and barred any other change to the trust. It also expressly found no evidence of wrongdoing by Rene, who appealed (No. 5D14-975).
The Decision
The Fifth District affirmed in an opinion filed January 2, 2015.
Rene argued the guardianship court had no authority to change the trust, and that any judicial proceeding concerning a trust had to begin with a complaint under the civil rules. The court disagreed. The Trust Code provides that a guardian of the settlor’s property may exercise the settlor’s powers to revoke or amend the trust, or distribute trust property, only as provided in the guardianship statute. And the guardianship statute lets a guardian, with court approval, exercise powers the ward could have exercised if not incapacitated, when the ward’s best interest requires it. White could have amended her own trust to change the trustee, so the guardian could ask the court for approval to do so. The court relied on an earlier Fourth District case, In re Guardianship of Muller, 650 So. 2d 698 (Fla. 4th DCA 1995), which reached the same result.
The court held that competent, substantial evidence supported the best-interest finding, and it rejected Rene’s other arguments without discussion. In a footnote, it said its decision does not suggest the guardian could be authorized to change the trust’s beneficiaries; that question was not before it.
The docket shows that Rene moved for rehearing, clarification, certification and rehearing en banc; the court denied those motions in February 2015, and the mandate issued February 27, 2015.
The Law
Section 736.0602(6) of the Florida Trust Code says a guardian of the settlor’s property may exercise the settlor’s powers over revocation, amendment or distribution of trust property only as provided in section 744.441.
Section 744.441 lists powers a guardian may exercise only after obtaining court approval. The opinion relied on the provision allowing a guardian to execute, exercise or release powers as trustee and other powers the ward might lawfully have exercised if not incapacitated, if the ward’s best interest requires it. The current statute also expressly lists, among the court-approved powers, creating or amending revocable trusts of the ward’s property, with the court keeping oversight of assets transferred to a trust unless it orders otherwise.
Rene’s procedural argument relied on section 736.0201, which says judicial proceedings concerning trusts are generally commenced by filing a complaint. The court held that it did not prevent the guardianship court from approving the guardian’s exercise of the ward’s power under the specific guardianship and Trust Code provisions.
Lessons
- Naming a successor trustee in a revocable trust does not guarantee that person will serve. If the settlor becomes incapacitated, a guardian can ask the court to change the trustee.
- The test is the ward’s best interest, decided on evidence. The named trustee does not have to have done anything wrong; here the court found Rene had not.
- A well-drafted durable power of attorney and trust can reduce the chance a guardianship is needed at all, and with it the chance a guardian rewrites the plan.
- Changing beneficiaries is a different and more serious step. The court expressly left that question open.
Source: Rene v. Sykes-Kennedy, 156 So. 3d 518 (Fla. 5th DCA Jan. 2, 2015), No. 5D14-975; ACIS docket.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Florida Appellate Court Oral Argument Property Dispute Case
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- A Guardian Created a Trust, Then Dad Died: Can a Successor Judge Hear the Challenge? (Mack v. Polsby)
- How to Avoid Guardianship in Florida: The Power of Attorney Is the Least Restrictive Alternative
- Should You Agree to Be a Trustee in Florida? How to Accept, Decline, Resign, and Get Paid
Frequently Asked Questions
Can a guardian change a ward's revocable trust in Florida?
Only with court approval and only if the ward’s best interest requires it. Section 736.0602(6) routes a guardian’s power to amend through section 744.441, and in Rene v. Sykes-Kennedy the court approved an amendment changing the trustee.
Can a guardian remove the successor trustee named in the trust?
Yes, by obtaining court approval to amend the trust to name a different trustee, as the guardian did here. The named successor does not have to be guilty of wrongdoing; the question is the ward’s best interest.
Can a guardian change the beneficiaries of a ward's trust?
Rene v. Sykes-Kennedy did not decide that. The court said in a footnote that its decision does not suggest the guardian could be authorized to amend the beneficiary provisions.
Does a challenge to a guardian's trust amendment have to be filed as a separate lawsuit?
Not necessarily. Rene argued that section 736.0201 required a complaint, but the court held the guardianship court could decide the guardian’s petition for authority to amend.
Talk to a Florida trust litigation lawyer
Weidner Law, P.A. handles Florida trust disputes and probate appeals from St. Petersburg. If you need a trust litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
