This question comes up frequently... Someone is the power of attorney
for someone else, let's say mom or dad, and the POA wants to change mom
or dad's trust (in their capacity as power of attorney) to conform to
some new wish of mom or dad. Can the POA holder do so after mom or dad
has become incompetent and unable to make the change themselves? What's
the big deal? Usually the POA holder has been making decisions for mom
or dad for some time now - writing checks, making investment decisions
and maybe even changing beneficiary designations on life insurance
policies or retirement plans to avoid probate - so this would seem a
The Ohio Trust Code clearly states in Section 5806.02(E):
"An agent under a power of attorney may exercise a settlor's powers
with respect to revocation, amendment, or distribution of trust property
only to the extent expressly authorized by both the terms of the trust and the power."
So unless both your POA and the trust you want to modify explicitly
authorize you to do so, in Ohio, you're out of luck. Such specifically
delegated powers in both documents are not default. And for good
reason. So if you're uncertain about your ability to make a change to
your Principal's trust, contact a qualified estate planning attorney in
your area to answer this common (but not always simple) question
I was reminded of this point by Gregg's post today about this same issue in North Carolina.
more insights on trust and estate planning at The Ohio T&E Blog, hosted by Michael D. Bonasera, an
attorney licensed in Ohio and practicing in the Columbus, Ohio office of Dinsmore & Shohl, LLP.
Michael Bonasera is a member of Dinsmore
& Shohl's Corporate Department. Michael focuses his
practice on estate and trust administration and family wealth and
succession planning with an emphasis on fiduciary disputes and trust and estate
. . . .
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