Positions and appointment of successor trustees A vacancy in a fiduciary corporation may arise for a number of reasons, including declination, incapacity to work, resignation, disqualification, removal or death. In all cases, unless the terms of the trust provide for another condition, there is no need to fill a vacancy unless there is no remaining agent to serve. When a vacancy is filled, it must first be filled by a designated person under the terms of the trust, and then by a person unanimously appointed by qualified beneficiaries and, if necessary, by a court appointee. 63 On the other hand, some states, such as Alaska, explicitly assert that the defender of trust is not an agent, unless the trust agreement provides for something else.  Alaska`s status, the UTC`s opt-out provisions, and the status of Illinois appear to allow a trusted advocate to avoid fiduciary responsibilities, even though the protector essentially has fiduciary powers. How can there be a trust if the defender of trust is not an agent and the trust contract and state law free the agent from liability, if a defender of trust directs the action of the agent? And would a settlor really want a trust that puts the beneficiaries in the mood of the defender of trust? If the trust defender is a fiduciary and owes fiduciary duties to directors, what is the standard of care? Could it be otherwise for different powers? Irrevocable trusts are generally not subject to any revocation or modification. However, a number of succession planning instruments and strategies are available to change the conditions of irrevocable trust. These irrevocable confidence-building tools and strategies differ depending on their scope, objectives and procedures. Some involve legal proceedings, some require agreement between the beneficiaries and others require only the actions of the beneficiary (the person who formed the trust). Should the estate planner or should he discuss the possibility that these new state laws, if not prohibited in the trust agreement, could significantly change the trust in the future? As a result, most clients grant at least limited appointment powers that allow for change through the exercise of powers. Under the laws of some states, even a limited power granted to a child of a group such as progeny may become broader at the level of grandchildren, when the child exercises it to create a new position of trust for the grandchild.
 Will the client not see this other than a decanting on a new position of trust, which has broad appointment power for the child? On the other hand, which designer did not have a settlor of irrevocable confidence that wanted confidence to be changed? Of course, state law can be more or less restrictive than the restatement rule. In Illinois, for example, the recipient`s consent and changing circumstances or an emergency are normally required for a court to amend a trust when an out-of-court settlement (as explained below) is not used.  However, Florida has enacted laws that allow for a clear willingness or confidence to be amended to tailor the document to the deceased/settlor.  Irrevocable trust settenlors generally cannot retain the right to modify these trusts if they wish to have transfers to trusts made to gifts. However, it is not prohibited to give another person the right to make these changes until there is agreement between them for the person who was appointed to carry out the Settlor`s instructions. This person is often referred to as a “trust advocate.” The observation of section 111 indicates that these agreements cannot be used for things such as the unauthorized termination of a trust. The condition that the amendment is something that a court might authorize otherwise also seems to limit the possibility of using these agreements to make changes to provisions