A trustee amending the trust, which is not how this usually works
Almost everywhere else in the Florida Trust Code, changing a trust is difficult. Section 736.04113 and section 736.04115 require a court. Section 736.0412 requires unanimous agreement and only after the settlor’s death. Even reformation is a judicial remedy with a clear and convincing standard.
This section lets the trustee do it alone, with a consent and no judge.
In the case of a trust that is solely for a named charitable organization or organizations and for which the trustee does not possess any discretion concerning the distribution of income or principal among two or more such organizations, the trustee may amend the governing instrument to comply with the provisions of s. 736.1204(2) with the consent of the named charitable organization or organizations.
Section 736.1206(1), Florida Statutes.
Two conditions define that first route, and both must hold. The trust must be solely for a named charitable organization or organizations, and the trustee must have no discretion about distributing income or principal among two or more of them.
Where both are satisfied, the charities are the entire beneficial interest and they know it. Their consent is the whole protection the statute requires.
And where the charities cannot speak for themselves
In the case of a charitable trust that is not subject to subsection (1), the trustee may amend the governing instrument to comply with s. 736.1204(2) after delivery of notice to, and with the consent of, the Attorney General.
Section 736.1206(2), Florida Statutes.
If the class of charities is open, or the trustee chooses among them, there is no fixed set of beneficiaries whose consent would mean anything. So the Attorney General stands in, which is consistent with the Attorney General’s general role in Florida charitable trusts under section 736.0110(3).
Note that subsection (2) requires both delivery of notice and consent. Notice alone is not enough, and silence is not consent. And delivery of notice is a defined term. Under section 736.1201(2) it requires a commercial delivery service or a form of mail requiring a signed receipt.
How narrow the power is
This is the part to be precise about, because a power to amend a trust without a court sounds much bigger than it is.
The amendment must be to comply with section 736.1204(2), and nothing else. That subsection requires a trustee of a private foundation trust to make distributions at such time and in such manner as not to subject the trust to tax under section 4942 of the Internal Revenue Code, the mandatory payout rule.
So the power exists to fix one specific kind of defect, a governing instrument whose distribution provisions would cause the foundation to fall foul of the federal payout requirement. It does not authorise a trustee to change the charitable purposes, add or remove beneficiaries, alter the trustee succession, or adjust compensation.
For anything broader, the ordinary machinery applies, and for a charitable purpose that has become impossible or impracticable the relevant provision is section 736.0413, the cy pres section.
Why the Legislature granted it
The rationale sits in the history of the Part. These provisions descend from legislation enacted after the federal Tax Reform Act of 1969, which required private foundation governing instruments to contain particular provisions. Thousands of existing instruments did not.
Statutes like section 736.1204 solved most of that by writing the requirements in by operation of law. But where an instrument affirmatively conflicted, the document itself had to change, and requiring a court proceeding for every such trust would have been an enormous and pointless expense.
This section is the pragmatic answer. Let the trustee fix the document, and require the consent of whoever actually represents the charitable interest.
No Florida court has cited this section
A search returns no citing documents at any precedential status in any court we searched, and the same is true across this Part, so we tested the search before reporting it.
Here the silence is easy to account for. A power exercised with consent produces no litigation. If the charities agree, or the Attorney General agrees, there is nobody left to sue. The section works precisely by removing the dispute.
What remains untested is what happens at the edges. Whether an amendment that goes beyond compliance is void or merely voidable in part, and what a trustee may do if the Attorney General neither consents nor refuses.