Limited Guardian Could Amend the Ward’s Revocable Trust to Appoint Herself as Successor Trustee

Posted on February 6, 2015

In a June 2013 guardianship proceeding, Janie Sykes-Kennedy (“Kennedy”) was appointed limited guardian of her sister, Lillie S. White (“White”), due to the court finding White to be incapacitated. The court found that White had senile dementia and was not capable of exercising her right to contract, to manage property, to make any gift or disposition of property, to sue and defend lawsuits, to consent to medical treatment, or to make decisions about her social environment or other social aspects of her life.

In August 2013, Kennedy filed a petition requesting that the court allow her, as White’s guardian, to amend White’s 2006 revocable trust to appoint herself as the trustee. Kennedy claimed that it was necessary for her as guardian to be able to access assets in the trust to be able to care for White. In addition, she claimed White had expressed worry that her property was being controlled by her granddaughter Lisa Rene (“Rene”). The trial court did not find any wrongdoing by Rene, but granted Kennedy’s petition, allowing Kennedy to amend White’s revocable trust, but only insofar as to appoint herself as trustee. Kennedy was prohibited from amending the trust in any other manner.  Prior to Kennedy being authorized as limited guardian to amend White’s trust to appoint herself as trustee, the trust designated Rene to serve as trustee if White became incapacitated.  Rene appealed to the Fifth District Court of Appeal of Florida contending that the guardianship court did not have the authority to enter the challenged order and that the order was not in White’s best interest.

In Rene v. Sykes-Kennedy, 2015 Fla. App. LEXIS 16 (Fla. 5th DCA 2015), Rene argued on appeal that the guardianship court did not have the authority to enter an order approving an amendment to White’s revocable trust because Section 736.0201(l), Fla. Stat. states that proceedings regarding trusts are initiated by filing a complaint and are governed by the Florida Rules of Civil Procedure. Rene’s argument was rejected because the Fifth DCA found that Florida’s Trust Code provides that in accordance with Section 744.441, Fla. Stat. a guardian of the property of the settlor may exercise a settlor’s power to amend a trust. See, Section 736.0602(6), Fla. Stat. Pursuant to Section 744.441 (2), Fla. Stat. and after obtaining court approval based upon a petition for authorization, a guardian may exercise any power as trustee that the ward might have lawfully exercised if not incapacitated, if the best interest of the ward requires such action. The court affirmed the guardianship court’s order and commented that, given the evidence regarding Kennedy’s education, business experience, and relationship with White, they had no difficulty concluding there was sufficient evidence to support the trial court’s determination that it was in White’s best interest to have Kennedy replace Rene as trustee.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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