Utilizing a Power of Attorney document to open a pooled trust sub-account
We have recently been made aware that legal counsel for Florida's Department of Children and Families (DCF) is closely scrutinizing Power of Attorney (POA) documents used to execute documentation to join a Pooled Special Needs Trust. We closely review any POA used to sign our Joinder Agreements, but we also state we don't necessarily have the final say. Arguably we do, because whether we believe the POA document is sufficient to join our trust is up to us and DCF isn't a party to our agreement. Then again, the time and expense to challenge DCF on this issue precludes a final decision being rendered by an authority.
First, whenever possible, have the beneficiary of the Pooled Trust sign the Joinder Agreement. This gives DCF one less thing to argue about.
Second, review the POA document closely to find authority to sign our paperwork. If you draft POA documents for a living make sure the power is granted to establish an irrevocable trust, particularly special needs trusts. We know, since October 1, 2011, that the power to establish trust accounts must be specifically set forth in the document and must be "signed or initialed next to" the grant of authority. At least one attorney for DCF has opined that initialing at the bottom of the page with such a power is insufficient.
Third, be prepared to argue that the only power necessary to open a Pooled Trust account is the power to contract. The Guardian Pooled Trust was established in 2002 by a charity. Your beneficiary is just joining it. We are simply opening an account.
As always, contact our office with any questions. We are here for you.
Travis D. Finchum
Board Certified Elder Law Attorney
Co-Trustee, Guardian Trusts