## Facts

- Goldie Marmor created a revocable trust in 1998, naming her husband, Marten Marmor, as trustee and placing 25 shares of Marmor 163-164, Inc. into the trust.
- The trust reserved to Goldie alone, during her lifetime, the rights to revoke, amend, and withdraw trust assets, and stated that no person other than the grantor could exercise those reserved rights.
- The trust provided that the stock would be distributed to Goldie’s daughter, Rose, upon Goldie’s death.
- On the same date, Goldie executed a durable power of attorney naming Marten as attorney-in-fact; a provision authorized transfers of Goldie’s assets to the trustee(s) of any revocable trust executed by Goldie.
- In 2000, Marten, acting under the power of attorney, executed a document purporting to delete the stock from the trust and transferred it to Goldie’s son, Josi.
- Marten later became incapacitated; the children became co-trustees. After Goldie’s death in 2003, the trust became irrevocable and the parties disputed the validity of the 2000 amendment and transfer.
- The trial court granted final summary judgment for Josi, upholding the amendment and transfer; Rose and Stuart (co-trustees) appealed.

## Issues

1. Whether a settlor’s durable power of attorney can authorize an attorney-in-fact to amend a revocable trust and withdraw trust assets when the trust reserves those powers exclusively to the settlor and expressly bars others from exercising them.
2. Whether broad asset-transfer language in a power of attorney can be construed to permit trust amendments or withdrawals contrary to unambiguous trust terms.

## Decision

- The appellate court reversed the final summary judgment for Josi.
- The court held the trust’s express terms reserved amendment/withdrawal powers to Goldie alone and prohibited any other person from exercising them.
- The court concluded Marten lacked authority under the power of attorney to amend the trust to remove the stock and transfer it to Josi.
- The case was remanded for further proceedings consistent with the holding that the purported amendment and transfer were invalid.

## Legal Principles

- A power to revoke or amend a trust must be exercised in strict conformity with the method and limitations stated in the trust instrument.
- Authority conferred by a power of attorney is strictly construed; powers not clearly and expressly granted are not implied.
- When a trust unambiguously reserves amendment/revocation/withdrawal rights to the settlor and bars others from exercising them, an attorney-in-fact may not use a power of attorney to do what the trust forbids.
- General or broadly phrased power-of-attorney language concerning asset transfers may support funding a trust but does not authorize amending the trust or withdrawing assets in conflict with the trust’s reservation of powers.

## Conclusion

The court held that the trust’s explicit reservation of amendment and withdrawal powers to the settlor, and its prohibition against any other person exercising those rights, controlled over the power of attorney; therefore, the attorney-in-fact’s purported trust amendment and transfer of the trust stock to another beneficiary were invalid.


Gurfinkel v. Josi, 972 So. 2d 927 (Fla. Dist. Ct. App. 3d Dist. 2007)