Definitions:
The principal is the person who gives the power of attorney. The agent or attorney-in-fact is the person to whom the power is given e.g. the holder of the power of attorney.
Discussion:
Can a holder of a Texas power of attorney create a trust using the principal’s money? In Texas, the answer is no, he cannot. The law dealing with trust requires that, in order to create a trust, the person who creates the trust, the settlor (the principal in this case,) must have the requisite intent to create a trust. A trust can be created “only if the settlor manifests an intention to create a trust.”
The statute that defines the powers held by an attorney-in-fact provides that if the principal has created a trust prior to his giving a power of attorney, the agent is authorized to transfer the principal’s property to that trust. The court’s have interpreted that section as denying the attorney-in-fact the right to create the trust for the principal but only to add to one already created by the principal himself. Thus, if the principal has created a trust and then gives someone a power of attorney, the attorney-in-fact can take the principal’s money and property and put it into the trust that the principal created. 230 3d 197, 170 3d 777.
Update:
In 2017, the Texas legislature added §751.031(b)(1) to the Estates Code. That section provides that an agent has the power to take certain actions if specifically authorized to do so in the POA such as to “create, amend, revoke, or terminate an inter vivos trust.” So, if the power of attorney states that the attorney-in-fact can create a trust, he can. The cases cited above would be overruled when he is granted those powers in the instrument. Most powers of attorneys don’t state that the attorney-in-fact can created trusts so the cases above are still good when the power of attorney is silent on the issue.
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By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.
