Melvin Bullock and Glenna Bullock created a Revocable Living Trust (RLT) in May 1996. They were each the Grantors of the trust as well as the initial Trustees.

The trust provided that the parties could revoke, alter or amend the the trust during their lifetimes by means of a written instrument signed by both of them.

Melvin named Glenna his attorney-in-fact by means of a general power of attorney in August 1998. The power of attorney POA) contained some broad language to the effect that Glenna had authority to do anything in the stead of Melvin that he could lawfully do himself. The POA also contained specific language granting certain powers, mainly financial, to Glenna.

On April 2, 2013, Glenna signed a Second Amendment to the Trust, purporting to, among other things, alter the property distribution to give two parcels of property to the Bulloch’s daughter, Kim Murie, rather than to all of the beneficiaries.

In June 2014 Glenna sought a declaratory judgment, claiming she did not understand the Second Amendment when she signed it and that it should be declared void pursuant to Utah Code Section 75-5-503(1), which prohibited an attorney-in-fact from modifying an inter vivos revocable trust unless such power was expressly authorized in the power of attorney.

The language of that particular section of the Utah Code had been amended since the time the Second Amendment to the trust was signed, but neither party claimed in the appeal that the new section should apply, so the Court of Appeals followed suit.

Glenna moved for summary judgment pursuant to Rule 56(a) of the Utah Rules of Civil Procedural, arguing that the Second Amendment to the trust was void on the ground that there was no language in the trust that expressly authorized the agent to amend the trust.

She argued that, although the power of attorney specifically authorized her to perform certain acts in Melvin’s name with respect to the trust, it only allowed her to do so in her capacity as Trustee of the trust. and not as Grantor of the trust. Since she acted in her capacity as Grantor of the trust in signing the Second Amendment, she argued that this action exceeded her authority, and was therefore void.

Kim Murie responded, claiming that there was no specific restriction in the POA preventing Glenna’s action, and that the broad language of the POA was sufficient to grant Glenna the authority to amend the trust as she had purported to do.

The district court granted summary judgment for Glenna. Kim appealed.

The Utah Court of Appeals upheld the district court’s decision, noting case law requiring courts to strictly construe the language in a power of attorney. Because there was no specific language in the POA authorizing Glenna as Melvin’s agent to amend the trust in her capacity as Grantor of the trust, the Second Amendment was void.

This case serves as a reminder of the delicate nature of a power of attorney to act as another’s agent, which is a high fiduciary responsibility. Glenna appears at all times to have acted in utmost good faith but she appears not to have fully understood what she was doing in signing the amendment.

General powers of attorney are a necessary estate planning tool, allowing an agent to take care of an incapacitated person’s financial affairs during their incapacity. But they also have the potential for mischief or abuse and should be used with great care.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.