In Texas, entrusting someone with a power of attorney is a significant decision granting substantial control over personal affairs. However, it is common to witness instances where this privilege is misused, leading to many complications and disputes. As someone who may be grappling with the repercussions of power of attorney abuse, it is imperative to understand your legal standing and the avenues available for redress. This post aims to discuss revoking a power of attorney in Texas. You can confidently and securely steer through this challenging time when armed with the proper knowledge.
You gave the Power of Attorney.
You can revoke the power of attorney if you are the one who gave the power of attorney and are dissatisfied with the person to whom you gave it. The best way to do this is to see your attorney and have him prepare a revocation of power of attorney.
A loved one gave the Power of Attorney.
A more complex situation arises when a loved one gives a power of attorney. That is especially true when the loved one is now incompetent to handle their affairs and cannot revoke the power of attorney. What do you do in that situation? A 2023 Texas case will illustrate how that situation can be handled.
The Fort Worth Court of Appeals ruled that someone other than the person who gave the Power of Attorney could ask the court to remove someone who held a power of attorney.
Facts of the case.
Trudy, who experienced “progressive mental deterioration . . . consistent with her dementia diagnosis… While still competent, Trudy executed a statutory durable power of attorney designating her daughter Linda as power of attorney.
Later, daughter Dianna moved in with Trudy and has been living rent-free in a house owned by Trudy. Dianna had prepared a quitclaim deed from Trludy to her, which Adult Protective Services later found to have involved financial exploitation.
After the deed, Dianna had Trudy execute a new power of attorney in favor of Dianna that removed Linda. Based on the Power of Attorney, Dianna took control of some of Trudy’s bank accounts, social security payments, and credit cards.
Brother Kyle filed a guardianship application and sought to be appointed Trudy’s guardian. He asked for temporary relief, claiming that Dianna had taken a significant portion of Trudy’s net worth. The allegations were that Trudy didn’t have the mental ability to change her Power of Attorney when she signed the new power of attorney in favor of Dianna. Hence, Linda, not Dianna, was the true power of attorney.
After a two-day bench trial, the probate court entered its judgment that because Dianna had “breached her fiduciary duty,” Dianna was “removed as agent in all powers of attorney for health care and all durable powers of attorney executed by” Trudy. See Tex. Est. Code Ann. § 753.001 (empowering probate court to remove agent upon finding breach of fiduciary duties owed to principal).
Appeal
Dianna appealed. She claimed that Kyle didn’t plead breach of fiduciary duty. The appeals court rebuffed that argument. Since there was no question that Dianna was a fiduciary, the burden was on her, not Kyle, to show that her actions did not breach her fiduciary duties. Additionally, the court noted that Dianna did not contest the findings of fact that she had been living rent-free in Trudy’s house and was paying the utilities with Trudy’s money—a breach of her fiduciary duty, which was sufficient to remove her as the Power of Attorney.
Trustees and executors are fiduciaries and owe duties to the beneficiaries of the trust or estate that they are in charge of. If they breach those duties, they can be removed.
The Texas Anti-SLAPP, TCPA, law was established to protect a person’s right to free speech, free association and the right to petition. When a suit is filed and a motion to dismiss under the Texas Anti-SLAPP, TCPA law is filed, the suit stops and the judge must rule on the motion. If he grants the motion, the suit is dismissed and the person who brought the suit is required to pay the attorney’s fees of the person sued. He may also have to pay expenses and sanctions. The law is a draconian sword hanging over suits.
The law has been applied in many different suits like divorce actions, collection suits, contract cases, etc. How far the law reaches is still being ironed out in Texas.
Recently, there was a suit to remove a trustee. Does it apply to removal actions?
A suit was filed to remove a trustee. The trustee filed a motion to dismiss under the Texas Anti-SLAPP, TCPA, law. You can read about it below.
Does the Texas Anti-SLAPP, TCPA law apply? Well, in the case, the court assumed without deciding that it did then went on to rule that the people against whom the motion to dismiss was filed met their burden and proved their defense. The motion to dismiss was denied.
If the people who filed the removal action had not met their burden, their removal suit might have been dismissed and they would have had to pay the attorney’s fees of the trustee. Just be aware!
In Texas a fiduciary can be removed if he has a conflict of interest with the beneficiary.
In a recent case, two brothers owned a farm. Both had done extra work on the farm. One of the brothers died. The one that died had an ex-wife and two children. He left his property to his children. His will created a trust for them. He named his brother both as executor of the will and as the trustee of the trust. His brother was, therefore, a fiduciary under the will and under the trust.
The wife asked the court to remove the brother as executor and as trustee. The trial court refused to remove him and
the wife appealed. The court of appeals agreed with the wife and removed the brother. The court’s reasoning was based on the fact that the shared ownership between the executor/trustee and the estate was a conflict of interest. The court must remove a fiduciary when there is a conflict of interest between the fiduciary and the beneficiary. 242 /3 182.
Update: The Supreme Court of Texas reversed this case and ruled that, under the facts of this case, the executor could not be removed. If you think that a fiduciary has a conflict of interest, you should contact us to evaluate the case in light of this Supreme Court decision.P.C. 149C and Prop. C. 113.082. 284 /3 831.
Update 2: The Texas legislature passed legislation that has the effect of overruling the Supreme Court’s decision in the first update. Now, a “material conflict of interest” will require removal of an executor or trustee. P.C.149C(a)(7).
By Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about Texas inheritance laws, inheritance rights, probate limits, have a family inheritance dispute, a property dispute or want to know the reasons for contesting a will or protecting a will from a contest and need an inheritance lawyer, we can help. Please click on the “Contact Us” tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.
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A fiduciary can be removed because of gross mismanagement.
In a recent case, an attorney was appointed as the Independent Executor of his great uncle’s estate. He was not a beneficiary under the will. He hired himself to be the attorney for the estate. The will did not provide for the attorney to receive a fee for his services.
The Inventory and Appraisement was filed over one year and seven months after he was appointed independent executor. The probate code requires the Inventory and Appraisement to be filed within 90 days.He sold two parcels of the estate’s real property and paid himself nearly $100,000 as “compensation.” Additional evidence showed that the attorney failed to pay property taxes or correct code compliance violations on the real estate after receiving notices from the city. Accordingly, the estate was charged penalties and the only remaining property in the estate was scheduled for foreclosure
due to non-payment of property taxes. Other evidence admitted in the record reflected he lent $25,000 of the estate’s money to one of his own clients. The loan was not documented. Accordingly, there was no due date for repayment by the client, no agreement to pay interest, and no collateral was provided to secure payment. The attorney had not attempted to collect any payments on this loan at the time of the hearing.
Faced with this record, the trial court removed the attorney and required him to repay the estate all of the money that he had received. While this is a really bad case of mismanagement, almost any of the actions by the attorney listed above would require the court to remove him as the executor.
If you suspect mismanagement of an estate in which you have an interest, you should act immediately. If you wait too long, the estate could be depleted.
By Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about Texas inheritance laws, inheritance rights, probate limits, have a family inheritance dispute, a property dispute or want to know the reasons for contesting a will or protecting a will from a contest and need an inheritance lawyer, we can help. Please click on the “Contact Us” tab above and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case. There is no fee for the initial consultation.
Your Privacy
We take your privacy very seriously. We are keenly aware of the trust you place in us and our responsibility to protect your privacy. We treat all information provided to us with care and discretion.
Breach of Fiduciary Duty has a Four Year Statute of Limitations
I wrote an article that explains that executors, trustees, people holding a power of attorney and others are fiduciaries. You can view that here.
I have written before about the limitations period for breach of fiduciary duty here. In that article, I talked about a Texas Supreme Court ruling that said there was no limitations period for an action to remove a fiduciary. The idea being that the wrongs being committed for which a removal is sought are ongoing. There is no specific date that a wrong occurred.
Limitations for a specific wrong do have a specific date and the four year statute of limitations applies. In a recent case, a trustee gave a deed of some of the property in the trust. The plaintiffs “asserted that they were residual, contingent beneficiaries of testamentary trusts…” and that the deed denied them benefits that they would have otherwise received because there was not much left in the trust.
The deed was filed in 2010 but suit was not filed until 2015, more than four years after the deed was recorded. The appeals court upheld the trial courts dismissal because of limitations. 11-16-00253-CV.
When a person tells someone how he wants his property handled when he dies but he has a written will or trust, the oral statements will not change how his property is handled if the will or trust is unambiguous.
Problem
Someone testifies in a Texas will or trust contest that the testator told them how he wanted his property distributed. The will or trust of the testator specifies a different way to distribute the property. What effect do the testator’s statements have on the Texas will or trust?
Facts
In her lawsuit, Blanca alleged that when Frank decided to sell the Ranch, he told family members they would be given an opportunity to match any offer he received.
Blanca filed the underlying lawsuit seeking a temporary restraining order and injunction to prevent Frank from conveying the (property based on the statements by the testator).
The court had to decide if or how this evidence should be treated.
ESTATE OF RODRIGUEZ, 04-17-00005-CV, (Tex. App. – San Antonio January 10, 2018)
Trust versus Will in Texas
Since this case dealt with a trust, the court stated the Texas’ rules for construing trusts.
The same rules of construction apply to both wills and trusts. The construction of an unambiguous trust instrument is a question of law for the trial court.
An appellate court may not focus its attention on what the testator intended to write, but on the meaning of the words he actually used. That is, we must not redraft a trust instrument to vary or add provisions under the guise of construction of the language of the trust to reach a presumed intent. No speculation or conjecture regarding the intent of the testatrix is permissible where, as here, the will is unambiguous, and we must construe the will based on the express language used therein.
This court must harmonize all terms to give proper effect to each part of the instrument; in construing the instrument, we must give effect to all provisions and ensure that no provisions are rendered meaningless. Provided the language of the instrument unambiguously expresses the settlor’s intent, there is no need to construe the instrument because “it speaks for itself.”
What are the rules for construing a trust in Texas?
ESTATE OF RODRIGUEZ, 04-17-00005-CV, (Tex. App. – San Antonio January 10, 2018)
Ruling
Based on the facts of the case and applying Texas law, the court found that the trust stated how the property was to be handled and that any statements by the Testator to the contrary were to be disregarded.
Notes
There are some Texas cases where a will or trust was ambiguous and statements by the Testator were used to determine what he meant. In this case, the trust was not ambiguous.
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Oral Statements by the Testator about a Texas Will
In Texas a 
A fiduciary can be removed because of gross mismanagement.