Perosi v. LiGreci, 98 A.D.3d 230

On November 5, 1991, Nicholas LiGreci established an irrevocable trust for his three adult children, including Linda Perosi, with John T. LiGreci as trustee and Jack A. DeSantis as successor trustee; the trust language stated it was irrevocable and not subject to alteration or amendment.
On April 20, 2010, LiGreci executed a durable power of attorney appointing Linda Perosi as attorney-in-fact, granting broad authority including estate transactions and to create and fund trusts; the power also allowed designation of trustees and beneficiaries.
On May 19, 2010, the attorney-in-fact amended the trust to remove the trustee and successor trustee and designate Nicholas Perosi as trustee and Ericalee Burns as successor; all three trust beneficiaries executed signed consents as required by EPTL 7-1.9.
On June 3, 2010, the creator died; he did not sign the amendment, and at death the trust corpus consisted of a $1,000,000 life insurance policy on the creator and his predeceased wife.
On July 28, 2010, the attorney-in-fact and Nicholas Perosi, as the new trustee, filed a petition for an accounting and to remove the existing trustees; the Supreme Court later denied the petition and held the amendment void, prompting appeal.
On the appeal, the court ultimately held that the power of attorney empowered the attorney-in-fact to amend the irrevocable trust with beneficiary consent, reversing the trial court and granting the petition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May an irrevocable trust be amended by an attorney-in-fact with beneficiary consent?	petitioners rely on EPTL 7-1.9 and beneficiary consents.	trustee contends amendments require personal action or are prohibited without explicit delegation.	Yes; attorney-in-fact may amend with beneficiaries’ consent.
Does the power of attorney authorize amendments to a trust created prior to its execution?	power extends to amend without trust-specific delegation.	power does not expressly authorize amending an inter vivos trust created earlier.	Authority extends via alter ego concept; amendments allowed.
Are statutory limits on an attorney-in-fact to amend a trust read to bar amendment of irrevocable trusts?	none necessary beyond consent requirements; statute allows amendments.	general authority limited; Goetz/Chiaro support limitation.	No, statutory scheme permits amendment where not forbidden by the trust.

Matter of Mergenhagen, 50 A.D.3d 1486 (2008) (consent of beneficiaries permits amendment of irrevocable trust)
Matter of Elser v Meyer, 29 A.D.3d 580 (2006) (trust amendment permitted with trustee/beneficiary consent where appropriate)
Whitehouse v Gahn, 84 A.D.3d 949 (2011) (amendment procedures must be followed when trust specifies them)
Matter of Rice v Novello, 25 A.D.3d 992 (2006) (attorney-in-fact cannot amend a revocable trust where the grantor must act personally)
Zaubler v Picone, 100 A.D.2d 620 (1984) (attorney-in-fact acts as alter ego unless acts require personal performance)