A trust may be created by an agent (attorney-in-fact) of a power of attorney under the following circumstances:
- Where the power of attorney expressly grants authority to create the trust; or
- Where the power of attorney grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal’s property that is as broad or comprehensive as the principal could exercise for himself or herself and that does not expressly exclude the authority to create a trust.
An agent or attorney-in-fact may file a petition for the court to determine whether a power of attorney grants the agent or attorney-in-fact authority that is as broad or comprehensive as that which the principal could exercise for himself or herself as provided above.
To create a trust the settlor (Maker) must have capacity (be competent). If made by an attorney-in-fact of a power of attorney, the settlor (Maker) is deemed to have the capacity to create a trust if:
(1) The trust is created by an agent (attorney-in-fact) of the settlor under a power of attorney; and
(2) The settlor had capacity to create a trust at the time the power of attorney was executed.