Trust provision prohibiting the exercise of powers reserved to the settlor by anyone other than the settlor includes the settlor’s agent

The decedent created a revocable trust naming her husband as the trustee.  She also executed a durable power of attorney naming her husband as her agent and giving him the power to transfer property to her revocable trust.  Two years later, her husband purportedly acting as her agent executed an amendment to the trust which removed certain property from the trust which he then transferred to one of the couple’s three children. 

After the decedent’s death, the other children sued to set aside the amendment.  The court held that the language of the trust prohibiting a conservator or guardian of the settlor or “any other person” other than the settlor from exercising the rights reserved to the settlor extended to an agent.  Gurfinkel v. Josi, No. 3D06-1616, 2007 WL 4322156 (Fla. Dist. Ct. App. Dec. 12, 2007).