Express Authority and Agent‑Amended Trusts under N.D.C.C. § 59‑14‑02(5):
Commentary on Matter of William C. Hansen and Verna Hansen Trust, 2025 ND 220

I. Introduction

Matter of William C. Hansen and Verna Hansen Trust, 2025 ND 220, is a significant North Dakota Supreme Court decision at the intersection of trust law, agency law, and statutory retroactivity under the North Dakota Uniform Trust Code. The case centers on whether a spouse, acting as attorney‑in‑fact under a durable power of attorney, validly amended her husband’s revocable trust share, and thus whether those amendments govern the ultimate distribution of family wealth.

The dispute arises within a family trust created by William C. and Verna Hansen in 1997. The trust divided assets into separate shares and expressly allowed each settlor to amend or revoke only their own separate trust share, while expressly waiving any power over the other’s share. On the same day the trust was executed, William executed a durable power of attorney naming Verna as his attorney‑in‑fact with broad, general authority over his affairs.

Acting under that power of attorney, Verna executed two amendments—one in 1998 and one in 1999—purporting to change the distribution scheme for after her death. Decades later, after both settlors and their son William A. (“William A.”) had died, the institutional trustee, Bravera Wealth, petitioned for a judicial declaration of beneficiaries’ rights. One branch of the family (Catherine Hansen Dietemann and her daughter, Lauren) favored the amendments; William A.’s son, Tony Hansen, challenged their validity.

The district court upheld the amendments, reasoning that the broad language in the power of attorney sufficed to authorize Verna to amend the trust and that the statutory “express authorization” requirement in N.D.C.C. § 59‑14‑02(5) did not apply because the trust was executed before that statute’s effective date. The North Dakota Supreme Court reversed, holding that:

N.D.C.C. § 59‑14‑02(5) applies to this proceeding despite the trust’s pre‑2007 execution; and
The broad and general wording of the power of attorney did not satisfy the statute’s requirement of express authorization for an agent to amend a trust.

The decision establishes and clarifies a key principle in North Dakota law: an attorney‑in‑fact may exercise a settlor’s powers to revoke, amend, or direct distributions from a revocable trust only if the trust or the power of attorney contains clear, direct, and specific language expressly granting that authority. General or catch‑all grants of authority are insufficient.

II. Summary of the Opinion

The core legal question was whether two amendments to the Hansen trust, executed in 1998 and 1999 by Verna as William’s attorney‑in‑fact, were valid. The answer depended on:

How N.D.C.C. § 59‑14‑02(5) applies to agents acting under a power of attorney; and
Whether that statute applies to a trust created in 1997 when the judicial proceeding was commenced only in 2024.

Section 59‑14‑02(5) provides that a settlor’s powers over a revocable trust—specifically revocation, amendment, or distribution—may be exercised by an agent under a power of attorney “only to the extent expressly authorized by the terms of the trust or the power”, and requires that exercise to be in writing and delivered to the trustee.

The district court held that this express‑authorization requirement did not apply because the trust and power of attorney predated the Trust Code’s effective date. It further concluded that, even if the statute did apply, the broad “miscellaneous” provision in the power of attorney, authorizing Verna to transact “all and every kind of business” on William’s behalf, was enough to imply authority to amend the trust.

The North Dakota Supreme Court disagreed on both points:

Applicability of § 59‑14‑02(5). Relying on N.D.C.C. § 59‑19‑02(1)(b), the Court held that, unless some other law controls, chapter 59‑14 applies to “all judicial proceedings concerning trusts which are commenced after July 31, 2007.” Because this proceeding began in 2024, § 59‑14‑02(5) governed the question of an agent’s authority to amend the trust, regardless of the trust’s execution date.
Meaning of “expressly authorized.” The Court interpreted “express” in line with Black’s Law Dictionary as authority that is “clearly and unmistakably communicated; stated with directness and clarity.” It found no such express grant in either the trust or the power of attorney. The trust’s only amendment‑related language was prohibitory, expressly waiving any right of one settlor to amend or revoke the other’s trust share and stating that each would have no control over the other’s separate share. The power of attorney’s broad, general business authority could not be stretched to count as “express” authority to amend the trust.

Because the amendments were held invalid under § 59‑14‑02(5), the Supreme Court:

Reversed the summary judgment that had upheld the amendments and applied the antilapse statute; and
Remanded the case for the district court to declare beneficiary rights under the original 1997 trust terms.

Having invalidated the amendments, the Court did not reach the parties’ arguments over whether the district court properly interpreted the amended language to invoke the antilapse statute, N.D.C.C. § 30.1‑09.1‑07.

III. Detailed Analysis

A. Statutory and Doctrinal Framework

The opinion sits at the junction of three bodies of law:

Agency law (governing powers of attorney and the relationship between principal and agent);
Trust law (especially revocable trusts under the North Dakota Uniform Trust Code, N.D.C.C. ch. 59‑09 to 59‑19); and
Statutory interpretation (involving effective‑date and retroactivity provisions of the Trust Code).

The key statutory provisions are:

N.D.C.C. § 59‑14‑02(5) (part of the Uniform Trust Code’s rules on revocation and amendment of revocable trusts):
“A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power, exercised in writing and delivered to the trustee.”
N.D.C.C. § 59‑14‑02(1), which states that unless a trust’s terms expressly declare it irrevocable, the settlor may revoke or amend it—but provides that this subsection does not apply to trusts created under instruments executed before August 1, 2007.
N.D.C.C. § 59‑19‑02(1)(b) (Trust Code effective‑date provision), providing that, unless another law states otherwise, chapter 59‑14 applies to all judicial proceedings concerning trusts commenced after July 31, 2007.
N.D.C.C. § 30.1‑09.1‑07, the antilapse statute, which may redirect lapsed gifts to a deceased beneficiary’s descendants under certain circumstances (though ultimately not decided here because the amendments were invalidated).

The Hansen decision clarifies how these pieces fit together, especially:

How to apply § 59‑14‑02(5) to pre‑2007 trusts in judicial proceedings commenced after 2007; and
What counts as “express” authorization in a power of attorney or trust for an agent to exercise the settlor’s revocation or amendment powers.

B. Precedents Cited and Their Role

The Court situates its reasoning within a line of North Dakota and Uniform Trust Code cases. The cited authorities provide the doctrinal backdrop and interpretive method.

1. Agency and Powers of Attorney

Durr v. Volden, 2024 ND 149, 10 N.W.3d 133 – Cited for the basic premise that a power of attorney is a written instrument authorizing a person to act as another’s agent. This sets the table for treating the power of attorney in Hansen as creating a classic agency relationship.
In re Estate of Vizenor, 2014 ND 143, 851 N.W.2d 119 – Emphasizes that a power of attorney creates an agency relationship. This allows the Court to import general agency principles into the analysis of the agent’s powers.
Alerus Financial, N.A. v. Western State Bank, 2008 ND 104, 750 N.W.2d 412 – Stands for the proposition that agency relationships involve both contract principles and fiduciary principles, and that the extent of an agent’s authority under a power of attorney is governed by rules for construing contracts (subject to fiduciary modifications). This underpins the Court’s approach of reading the power of attorney’s words carefully and giving them their contractual meaning.

Taken together, these cases justify treating the power of attorney as a contract between William and Verna, and applying contract‑interpretation rules to define the boundaries of Verna’s authority as agent.

2. Trust Interpretation

In re Michael J. Tharaldson Irrevocable Trust II, 2023 ND 2, 984 N.W.2d 375 – Establishes that interpreting the meaning of words in a trust is governed by the principles of contract interpretation.
Langer v. Pender, 2009 ND 51, 764 N.W.2d 159 – Reinforces that the Court’s primary objective is to determine the settlor’s intent.
Hecker v. Stark County Social Service Board, 527 N.W.2d 226 (N.D. 1984) – Clarifies that when a trust is unambiguous, settlor intent is ascertained from the language of the instrument itself, without resort to extrinsic evidence.

These authorities support the Court’s close reading of paragraph five of the Hansen trust—“REVOCABLE TRUST”—which clearly reserves amendment authority to each settlor only as to their own separate trust and expressly waives any power over the other’s trust share. From these cases, the Court draws the methodology: examine the text, treat it like a contract, and honor clear language.

3. Statutory Interpretation and the Uniform Trust Code

In re Matthew Larson Trust Agreement, 2013 ND 85, 831 N.W.2d 388 – Cited for the proposition that the interpretation and application of the Trust Code are questions of law, fully reviewable on appeal.
Fahey v. Cook, 2024 ND 138, 9 N.W.3d 668 – Supplies the general rules of statutory interpretation: give words their plain and ordinary meaning unless otherwise defined; construe statutes as a whole; harmonize related provisions; and interpret uniform laws to promote uniformity among adopting states.
In re Rose Henderson Peterson Mineral Trust, 2022 ND 92, 974 N.W.2d 372 – Applies the Trust Code’s effective‑date provision (N.D.C.C. § 59‑19‑02) to clarify that the Code’s applicability turns on the commencement date of judicial proceedings, not the date the trust instrument was executed.
Warne v. Warne, 275 P.3d 238 (Utah 2012) – A Utah Supreme Court decision interpreting Utah’s Uniform Trust Code analogue to conclude that its rules on revocation applied retroactively to a dispute over partial trust revocation. Cited as persuasive authority, reinforcing the uniform‑law principle that the Trust Code’s provisions generally apply to disputes arising after its effective date, even when trusts were created earlier.
Uniform Trust Code § 1106, Comment – Referenced indirectly through the Court’s discussion, this comment explains that the “additional effective date provision” in subsection (1) (concerning whether a trust is presumed revocable or irrevocable) is specific to that subsection and does not govern the entire statute.

Through these authorities, the Court constructs a coherent interpretive approach:

Read the Trust Code provisions in light of § 59‑19‑02’s effective‑date rule;
Distinguish between subsection‑specific effective‑date carve‑outs (like § 59‑14‑02(1)) and the rest of the statute; and
Favor uniformity with other UTC jurisdictions unless North Dakota law directs otherwise.

C. The Court’s Legal Reasoning

1. Does § 59‑14‑02(5) Apply to a 1997 Trust in a 2024 Proceeding?

The district court’s first major error was to exclude § 59‑14‑02(5) from the analysis on the ground that it did not exist in 1997 when the trust and power of attorney were executed. The Supreme Court corrects this by focusing on the explicit effective‑date rule in N.D.C.C. § 59‑19‑02(1)(b):

“Unless another law provides otherwise, chapter 59‑14 applies to all judicial proceedings concerning trusts which are commenced after July 31, 2007.”

Because Bravera Wealth’s petition was filed in 2024, long after July 31, 2007, the Court concludes that, absent a contrary law, § 59‑14‑02(5) applies to this dispute. The Court then addresses the only candidate for a “contrary law”: § 59‑14‑02(1), which states:

“Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before August 1, 2007.” (Emphasis added.)

The Dietemanns argued that this effective‑date limitation on subsection (1) should be read to limit the applicability of the entire section 59‑14‑02 to pre‑2007 trusts. The Supreme Court rejects that reading for two reasons:

Textually, the effective‑date clause is explicitly confined to “[t]his subsection,” i.e., subsection (1), which governs the presumption of revocability versus irrevocability. The statute does not say that section 59‑14‑02 as a whole is inapplicable to pre‑2007 trusts.
Conceptually, subsection (1) deals with a different question (the default presumption about revocability) than subsection (5), which deals with who may exercise the settlor’s powers and under what conditions (i.e., an agent under a power of attorney with express authorization). Since all parties agreed the Hansen trust was revocable at the time of the amendments, subsection (1)’s presumption is irrelevant here.

The Court also notes the Uniform Trust Code commentary, which identifies the effective‑date qualifier in subsection (1) as an “additional effective date provision” specific to the revocability presumption. This supports the conclusion that subsection (5) is governed by the general rule in § 59‑19‑02, not by the carve‑out in subsection (1).

Accordingly, the Court holds the district court erred as a matter of law by failing to apply § 59‑14‑02(5)’s express‑authorization requirement.

2. What Does “Expressly Authorized” Mean in § 59‑14‑02(5)?

Having determined that § 59‑14‑02(5) applies, the Court addresses whether either:

The terms of the trust; or
The power of attorney

“expressly authorized” Verna, as agent, to exercise William’s powers to amend the trust.

The statute requires that an agent may exercise the settlor’s powers “only to the extent expressly authorized by the terms of the trust or the power.” The Court defines “express” by quoting Black’s Law Dictionary:

“‘Express’ means: ‘Clearly and unmistakably communicated; stated with directness and clarity.’”

This choice of definition is important. It sets a high bar: vague, inferred, or implied authority will not suffice. The Court emphasizes that the Dietemanns’ argument—“authority can be implied from broad, general provisions”—is incompatible with the statutory word “express.”

3. The Trust Language: Expressly Prohibitory

The Hansen trust’s “REVOCABLE TRUST” paragraph is central:

“Each of the Settlors expressly reserves the right to amend or revoke this instrument at any time as it relates to and pertains to their respective separate trust. Each of the Settlors, however, expressly waives the right at any time or times to amend or revoke the Trust as established or created hereunder by the other Settlor. It is the express intent of William C. Hansen and Verna Hansen that neither one of them shall have any control or power of any kind or nature over the separate share or trust fund that each has established hereunder for their own separate respective benefit.”

The Court draws two points from this language:

The trust spells out, with clarity, that each settlor may amend only their own separate trust share.
Each settlor “expressly waives” any right to amend or revoke the other’s separate share and declares an intent that the other spouse have “no control or power of any kind or nature” over that share.

Thus, far from providing any grant of amendment power to one spouse over the other’s trust share, the trust categorically denies

The Court therefore agrees with Tony Hansen that “there is nothing in the trust agreement that could be read to give agents prior express authorization to amend it.” The only amendment‑related language is expressly prohibitory.

4. The Power of Attorney: General vs. Express Authority

The power of attorney executed the same day as the trust includes a broad “miscellaneous” clause authorizing Verna:

“To transact all and every kind of business of whatsoever kind or nature and generally to do and perform all things, and make, execute and acknowledge all contracts, orders, deeds, writings, assurances and instruments which may be requisite or proper to effectuate any matter or thing appertaining or belonging to me and generally to act for me in all matters affecting any business or property which I may now or in the future have with the same force and effect and to all intents and purposes as though I were personally present and acting for myself . . . .”

The power of attorney also specifically authorizes:

Managing bank accounts;
Making gifts;
Transferring property into trusts; and
Transacting “all and every kind of business” on William’s behalf.

The Dietemanns argued that, taken together, these provisions implied authority to amend the trust. The Court, however, rejects this argument on two levels:

Statutory requirement of “express” authority. By definition, “express” authority cannot be implied from broad, general language. The statute requires that the document clearly and unmistakably state that the agent has power to amend or revoke the trust. The Hansen power of attorney contains no such statement: it never mentions “amendment” or “revocation” of a trust; it does not reference the specific trust; and it does not connect the agent’s powers directly to exercising settlor powers under the trust.
Contrast with specific grants. When the power of attorney does intend to confer discrete powers—such as the power to make gifts or to transfer property into trusts—it does so expressly. This structure underscores that had William intended to grant Verna explicit authority to amend his trust as his agent, the document could and should have done so with similar clarity.

The Court concludes that the broad, catch‑all language is insufficient to constitute “express” authorization under § 59‑14‑02(5). Therefore, Verna, as William’s agent, lacked statutory authority to amend the trust.

5. Combined Effect: Amendments Invalid

When the trust and the power of attorney are read together under § 59‑14‑02(5), the result is straightforward:

The trust expressly withholds and waives any power of one spouse to alter the other’s separate trust share, and is silent on delegation to agents.
The power of attorney contains no express, specific statement authorizing the agent to exercise the settlor’s trust amendment powers.

Under the statutory command that agents may exercise settlor powers only to the extent “expressly authorized,” the Court holds:

“Absent an express written authorization, the amendments are invalid under N.D.C.C. § 59‑14‑02(5).”

This holding invalidates the 1998 and 1999 trust amendments and restores the original 1997 trust terms as the operative instrument for determining beneficiary rights.

D. Application to the Dispute and the Antilapse Issue

Under the district court’s approach, the 1998/1999 amendments controlled, and the court went on to interpret the amended language as triggering the antilapse statute, N.D.C.C. § 30.1‑09.1‑07. Because William A. predeceased his mother Verna, the court applied the antilapse statute to treat his share as passing to his descendant Tony, effectively doubling Tony’s interest from 25% to 50%.

The Supreme Court does not address whether this interpretation of the amended trust was correct. Once the amendments are declared invalid, the antilapse analysis based on those amendments falls away. The Court explicitly states:

“The district court erred when it found that the trust amendments are valid and it is therefore not necessary to address whether the court misinterpreted the amended language with regard to the antilapse statute.”

On remand, the district court must determine:

How the original 1997 trust terms distribute the trust property among the remaining beneficiaries; and
Whether, and how, the antilapse statute applies in that original framework, given William A.’s death before Verna.

Thus, the Supreme Court’s decision is both narrow and powerful:

Narrow, in that it addresses only the validity of the amendments and not the full downstream distribution questions; and
Powerful, because by removing the amendments from the equation, it substantially alters the baseline from which the lower court must now re‑calculate the respective beneficial interests.

E. Impact and Future Implications

1. Estate Planning and Drafting of Powers of Attorney

The most direct practical impact of Hansen is on estate planning practice in North Dakota:

Explicit trust‑amendment clauses now essential. Any attorney or settlor who wishes to empower an agent to amend or revoke a revocable trust must include clear, specific language in the power of attorney and/or in the trust itself stating that:
- The agent may exercise the settlor’s power to amend or revoke the trust; and
- Ideally, whether there are any limits (e.g., no amendment that alters certain beneficiaries or exceeds certain thresholds).
Generic “do everything I can do” clauses are insufficient. The Hansen Court makes clear that sweeping, general business authority—common in many traditional power‑of‑attorney forms—does not count as “express” authorization under § 59‑14‑02(5).
Need to harmonize trust and power‑of‑attorney language. Where a trust expressly limits one spouse’s control over the other’s separate share, as in Hansen, planners must be careful not to inadvertently undercut that allocation of control by overly broad delegation language in a power of attorney.

This decision will likely lead to:

Revisions of standard power‑of‑attorney forms used by practitioners and financial institutions;
More explicit trust provisions addressing agent authority (or lack thereof) to modify the trust; and
Increased counseling to clients about the consequences of delegating amendment power to agents, especially spouses or children who are also beneficiaries.

2. Litigation Over Historical Amendments

Hansen also has potential ramifications for existing trusts and amendments executed years ago:

Many revocable trust amendments executed before and even after 2007 involved agents acting under broad, general powers of attorney. Under Hansen, if a dispute over such an amendment is litigated now in North Dakota, § 59‑14‑02(5)’s express‑authorization requirement will apply to determine the amendment’s validity, regardless of when the trust or POA was signed.
Beneficiaries who are disadvantaged by amendments made by an attorney‑in‑fact may challenge those amendments, arguing there was no “express” authorization in the trust or POA.
Conversely, fiduciaries administering trusts may be placed in a difficult position: they may have long administered trusts according to such amendments, only to face judicial challenges years later. Hansen suggests that the controlling question now is legal validity under § 59‑14‑02(5), not reliance or administrative history.

While the opinion does not directly address laches, estoppel, or related equitable doctrines, its categorical statutory holding may embolden courts and litigants to scrutinize existing amendments involving agents.

3. Clarification of Trust Code Retroactivity in North Dakota

Hansen clarifies a broader and often misunderstood point: the North Dakota Uniform Trust Code generally governs proceedings commenced after its effective date, regardless of when the trust instrument was signed, unless a specific statutory carve‑out says otherwise.

By carefully distinguishing between:

The subsection‑specific effective‑date limitation in § 59‑14‑02(1); and
The general application clause in § 59‑19‑02;

the Court provides a roadmap for future cases involving older trusts. This approach promotes:

Uniformity with other UTC jurisdictions (as in Warne v. Warne); and
Predictability: courts and practitioners can look first to § 59‑19‑02, then to any specific exceptions within individual sections.

4. Protection of Settlor Intent and Fiduciary Integrity

The decision also reinforces foundational policy values:

Respect for settlor intent. William and Verna’s trust clearly intended that each would control only their own share and that neither would have power over the other’s separate share. By disallowing amendments that effectively circumvented that structure via a broad POA, the Court safeguards this expressed intent.
Limiting opportunistic or unintended use of agency powers. Requiring “express” authority reduces the risk that an attorney‑in‑fact will use general language to effect major structural changes to a trust that the principal may not have specifically contemplated or approved.
Clarity for fiduciaries. Trustees can now insist on explicit language before accepting amendments executed by agents.

IV. Complex Concepts and Terminology Explained

To make the decision accessible, this section briefly explains several key concepts and terms used in the opinion.

Settlor – The person who creates a trust and whose property is placed into that trust. Here, William and Verna were co‑settlors.
Revocable Trust – A trust that the settlor can change or revoke during their lifetime. The Hansen trust was expressly revocable as to each settlor’s separate share.
Separate Shares – A structure in which a single trust agreement creates distinct sub‑trusts or shares for each settlor or beneficiary. In the Hansen trust, each spouse had a “separate share” for their benefit.
Power of Attorney (POA) – A legal instrument by which one person (the principal) authorizes another (the agent or attorney‑in‑fact) to act on their behalf in financial, legal, or personal matters.
Agent / Attorney‑in‑Fact – The person authorized to act under a power of attorney. Verna was William’s attorney‑in‑fact.
Express Authority – Authority that is specifically and clearly granted in words, leaving no doubt. A general statement like “do everything I could do myself” is not “express” authority to amend a trust under § 59‑14‑02(5); the document must clearly state that trust amendment powers are included.
Implied Authority – Authority that is inferred from broader language or from circumstances, but not explicitly spelled out. Hansen holds that implied authority is insufficient for an agent to amend a trust under § 59‑14‑02(5).
Antilapse Statute – A law that prevents a gift in a will or trust from failing (“lapsing”) when the intended beneficiary dies before the testator or settlor. Instead, the gift may “pass down” to the beneficiary’s descendants. N.D.C.C. § 30.1‑09.1‑07 is North Dakota’s antilapse statute. The district court applied it to increase Tony’s share under the amended trust, but the Supreme Court never reached that question once the amendments were held invalid.
Uniform Trust Code (UTC) – A model statute adopted, with variations, by many U.S. states to standardize trust law. North Dakota’s trust statutes in chapters 59‑09 to 59‑19 are based on the UTC.
Effective‑Date Provision – A statute that specifies when and to what instruments or events a new law applies. N.D.C.C. § 59‑19‑02 is such a provision for North Dakota’s Trust Code, largely tying applicability to the commencement date of judicial proceedings.

V. Conclusion

Matter of William C. Hansen and Verna Hansen Trust, 2025 ND 220, provides a clear and authoritative statement of North Dakota law on the authority of agents to amend revocable trusts. The Court holds that N.D.C.C. § 59‑14‑02(5) governs any trust proceeding commenced after July 31, 2007, even when the trust and power of attorney were executed earlier, and that this statute demands express, not implied, authorization for an agent to exercise a settlor’s amendment or revocation powers.

By invalidating the trust amendments executed by Verna under a broadly worded power of attorney, the Court:

Restores the original trust provisions as the controlling document for beneficiary rights;
Clarifies the scope of an attorney‑in‑fact’s authority in the trust context; and
Reinforces the importance of settlor intent and statutory safeguards against unintended use of general agency powers.

Going forward, estate planners must draft powers of attorney and trust instruments with greater precision whenever the principal intends an agent to exercise trust‑amendment powers. Trustees and courts, in turn, are now armed with a clear standard: absent a specific, unmistakable grant of trust‑amendment authority in the trust or the power of attorney, any purported amendment executed by an agent is invalid as a matter of law.

Within the broader legal landscape, Hansen strengthens the role of the Uniform Trust Code in North Dakota and underscores the judiciary’s commitment to harmonizing trust law, agency law, and statutory interpretation in a way that protects both settlor intent and beneficiary expectations.

Express Authority and Agent‑Amended Trusts under N.D.C.C. § 59‑14‑02(5): Commentary on Matter of William C. Hansen and Verna Hansen Trust, 2025 ND 220