Florida Power of Appointment Trust Case
A January 11, 2021 1st District Court of Appeal appellate opinion sheds light on Florida Power of Appointment Law. A power of appointment is a great power to give, or not give, money and property to others. But remember, an attorney reminds us that they can also be a power of dis-appointment. Many family members want to know what went wrong when they are not left trust money. This can cause trust lawsuits. The power has to be exercised properly, or they don’t work.
Recent Caselaw from 1st DCA
The 1st District Court of Appeal issued its opinion on January 11, 2021. The case is Ammeen v. Sjogren. This recent case dealt with two important Florida legal issues for probate and trusts. First, can someone who has a power of appointment bind others, even potential trust beneficiaries? This is an issue of REPRESENTATION. Second, who has standing to bring a trust lawsuit when there is a power of appointment?
The Florida Legislature has specific statutes on Florida Power of Appointment law. Fla. Stat. 709.02- 709.07 can be read for free by CLICKING THIS LINK. Chapter 709 of the Florida Statutes deals with Powers of Attorney and also Powers of Appointment. Don’t get them confused. Part I of Chapter 709 deals with Florida Power of Appointment Law. A Power of Appointment is a power given by someone typically called the “grantor” of the power. The one who can exercise the power is often called the “grantee” or “powerholder.” You typically see a power of appointment in a trust. Many people “exercise” their power of appointment in their Last Will & Testament or a POUR OVER WILL. Finally, the Florida Probate Code defines the phrase. See Florida Statute 731.201 (30).
A common example of a power of appointment is when someone leaves a trust. You can use a power of appointment if you were given the power to give away property. This is common in Florida Trusts. So, the creator of a trust can give you the power to appoint any money left in the trust when you die. How do you exercise it? There are typically instructions in the trust. The trust usually gives you the power to appoint all or some trust property by your last will or a separate writing. That document usually has to reference the specific power of appointment. Following the instructions is important. In a Florida Trust, if someone has a power, but does not use it, there is typically default language. That language tells you where the property goes if you don’t use your power of appointment.