Question:
Ernest A. Kotsch executed a durable power of attorney when he was 85 years old, giving his son, Ernie, the power to manage and sell his real estate and personal property “and to do all acts necessary for maintaining and caring for [the father] during his lifetime.” Thereafter, Kotsch began “keeping company” with a widow, Margaret Gradl. Ernie believed that the widow was attempting to alienate his father from him, and he observed that she was exerting a great deal of influence over his father. Acting under the durable power of attorney and without informing his father, Ernie created the “Kotsch Family Irrevocable Trust,” to which he transferred $700,000, the bulk of his father’s liquid assets, with the father as grantor and initial beneficiary and Ernie’s three children as additional beneficiaries. Ernie named himself trustee. His father sued to avoid the trust. Ernie defended his action on the ground that he had authority to create the trust under the durable power of attorney. Decide. [Kotsch v Kotsch, 608 So2d 879 (Fla App)]