Text and Emails in Litigation

Can a Guardian of a Ward Change a Ward’s Trust?

The short answer to this question is yes but with court approval.

Florida Statute 736.0602(6) provides that a guardian of the property of a settlor may only exercise a settlor’s powers with respect to revocation, amendment, or distribution of trust property only as provided in section 744.441.

Florida Statute 744.441(19) provides that, a guardian, after obtaining court approval and authorization, may:

(19) Create or amend revocable trusts or create irrevocable trusts of the property of the ward’s estate which may extend beyond the disability or life of the ward in connection with estate, gift, income, or other tax planning or in connection with estate planning.

One such instance of a change to a ward’s trust was that involved in Rene v. Sykes-Kennedy, 156 So. 3d 518 (Fla 5th DCA 2015).  In Rene, the settlor who created a revocable trust was subsequently determined to be incapacitated but had nominated a granddaughter to serve as the successor trustee of the trust upon the person’s death or incapacity.

When the guardianship was initiated and the ward, Ms. Lillie White, was determined to be incapacitated, there were questions and concerns raised by the guardian, Ms. Janie Sykes-Kennedy (the ward’s sister), relative to the ability and appropriateness of the granddaughter, Lisa Rene, serving as a fiduciary on the ward’s revocable trust.  In her petition, the guardian alleged that the guardian needed to access funds in the trust for the ward’s care, and also that the ward herself expressed continued worry that her property was being controlled by the granddaughter.  The guardian was successful before the guardianship court on her petition and was permitted to amend the terms of the trust which had nominated the granddaughter as the successor trustee, and instead, the guardian was appointed to serve in the capacity as successor trustee.

The granddaughter appealed.

On appeal, the Fifth District Court of Appeal upheld the guardianship court’s amendment to the ward’s trust, thereby appointing the guardian as successor trustee. Interestingly, there were no judicial findings that the granddaughter acted inappropriately or wrong.  The appellate court noted that if the ward was not incapacitated, she herself would have been permitted to amend her trust and appoint a different successor trustee. Moreover, the appellate court noted that given the guardian’s education, business experience, and relationship with the ward, there was substantial competent evidence to support the trial court’s decision, that it was in the “best interest of the ward” to allow the amendment to change the successor trustee.

The best interest standard can be utilized in many different ways which will vary depending on the facts of your particular case.  This is an important discussion to have with your trusted guardianship and trust lawyer.