Can A POA be Used to Act for A Trustee?

An agent may not use a POA executed by the principal individually to sign for the principal in their capacity as a trustee of a trust. Sec. 709.2201(3), F.S. provides that an agent “may not…(4) exercise powers and authority granted to the principal as trustees or as court-appointed fiduciary.” This means that, if the POA was executed by the principal only in his or her induvial capacity, the agent cannot use that POA to execute documents on behalf of a trust, including deeds and mortgages, where the principal serves as trustee. This is true regardless of the powers contained in the POA.

Sec.709.2201(5), F.S. provides that the authority granted in a POA is exercisable with respect to property that the principal owns when the POA is executed, and to property that the principal acquires later. When title to real property is held in the name of the trustee, as trustee of a specific trust, the property is an asset of the trust. As such, the powers granted by the POA do not apply to it.

Further, the authority of a trustee to act on behalf of the trust is controlled by the terms of the trust. Sec. 736.0801, F.S., states that, “Upon acceptance of the trusteeship, the trustee shall administer the trust in good faith, in accordance with its terms and purposes…” The terms of the trust grant the trustee, not the individual, authority over the trust assets. Only the trustee can delegate that authority and they can only delegate that authority if the terms of the trust authorize them to do so.