by Robert Ray | Last updated Sep 19, 2023 | Removal, Undue Influence, Who is a Fiduciary
Power of Attorney Abuse
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.
You can learn about guardianships here and here.
by Robert Ray | Sep 18, 2023 | Undue Influence, Who is a Fiduciary
What is Guardianship?
Some people need help managing their daily affairs because of their age, a disease or an injury. If this happens, a court of law may appoint a guardian for them.
Guardian and ward are legal terms used to indicate the relationship between someone who protects another (the guardian) and the person being protected (the ward). In Texas, the process to appoint a guardian includes:
- Filing an application with a court
- Having a hearing before a judge
- Having a judge appoint a guardian, if one is needed
Because having a guardian takes away a person’s rights, it should be the last and the best choice to protect someone. Before asking a court to appoint a guardian, other options are usually tried first, such as:
- Finding someone to help the person pay bills and manage money
- Finding someone to help the person make decisions, including health care decisions
- Enrolling the person in available community services, including Medicaid programs
Once a guardian is appointed, it often becomes permanent. However, if things change significantly, a judge can decide a guardian is no longer needed.
by Robert Ray | Last updated Mar 2, 2022 | Contesting wills, Contesting Wills, Duties, Procedure, Trustee, Undue Influence
Presumption of Undue Influence
A person who is an Executor, Administrator, Trustee, or who has a Power of Attorney is a fiduciary. A fiduciary must act in the best interest of the beneficiaries and show that each of his actions was in the beneficiaries’ best interest. When an action benefits the fiduciary in any way, there is a presumption of unfairness, and the fiduciary may be liable.
David Johnson, an attorney who writes on fiduciary litigation, has an article that addresses the case of In re Estate of Klutts, 02-18-00356-CV, (Tex. App.—Fort Worth December 19, 2019, no pet. history). In Klutts, a son who had a power of attorney helped his mother prepare a new will which benefited the son. When the mother died, he attempted to probate the new will. However, his siblings contested the will. The son asked the court to dismiss the contest because his siblings had no evidence that he unduly influenced his mother. The trial court agreed with the son and rejected the will contest. On appeal, the appeals court reversed.
The appeals court held that because he had a power of attorney, the son had to overcome the presumption of undue influence. Thus, the burden was not on the siblings to prove undue influence but on the son to disprove it.
by Robert Ray | Last updated Aug 29, 2023 | Undue Influence
Undue Influence
Proving undue influence is often hard in an inheritance dispute. Many facts come into play when undue influence is involved. These facts include frail health, physical dependency, false affection, relationship poisoning, threats and mistreatment, and involvement in the execution of documents by and in favor of the alleged abuser. Undue influence can also be a strong mind over a weaker mind.
Relationship poisoning and undue influence.
What is relationship poisoning in the context of a will contest? A Texas court held that when a person makes negative remarks about a person’s children and negatively reinterprets historical events, the jury can consider these acts relationship poisoning. The jury can find undue influence based on the relationship poisoning, and the verdict will be upheld. 340 SW 3d 769. While relationship poisoning alone may or may not be sufficient proof of undue influence, if it has occurred, it needs to be brought to the court’s attention because it will assist the court in determining if undue influence has occurred.
by Robert Ray | Last updated Dec 12, 2020 | Contesting Wills, Grounds, Undue Influence
This article is about ways that people exert undue influence in Texas to obtain the property or estate of others.
Undue influence can take many forms. In a 2020 Texas case, Buford, a man with a below average IQ hired a private investigator, Tait, whose name he found in a phone book, to help him. Tait’s assistant was Irene Rueda.
Undue influence example. Tait and Rueda soon began providing Buford with other services, including cleaning, cooking, bill paying, shopping, and running errands. In fact, Rueda testified that she saw Buford almost every day for three years until his death in August of 2015. During these three years, Tait and Rueda submitted numerous invoices to Buford, billing him tens of thousands of dollars for their investigation and other services. In addition, Buford gave both Tait, Rueda, and their family members bonuses and gifts, including a $5,000.00 gift to Tait’s wife, despite the fact that Buford had admittedly never met his wife. In addition, the record contains evidence that Buford made large cash withdrawals from his account during the time that Tait and Rueda were providing services to him, some of which were signed by Tait, acting on Buford’s behalf.
Tait prepared wills
Buford did not have a will when he first met Tait and Rueda. Several wills were prepared by Tait and signed or written out by Buford. The will gave Tait and Rueda all of the real and personal property and $300,000 to Tait and $200,000 to Rueda. The total value was about 2.4 million dollars.
When the will was filed for probate, the cousins of Buford, his closest relatives, contested it. The jury ruled that the will were written under undue influence. Tait and Rueda appealed.
The appeals court, in addition to the above facts, set out the evidence supporting the jury verdict including:
- Emails from Tait the he was “working” on Buford to make a will.
- Bills from Tait for helping Buford prepare his will.
- Tait had taken over virtually all of Buford’s legal affairs.
- Tait accompanied Buford to every meeting with others.
- Tait himself admitted that he could influence Buford to add provisions to his will.
- After making the first will, Buford told someone that he had not yet decided what to do with his property.
Every case is different but undue influence is based on the overall conduct that is taking place and who benefits from it.
If you believe a loved one has been the subject of undue influence, you must act quickly. Remember, the two year statute of limitations for contesting a will doesn’t change even if the will is the result of undue influence.
Undue Influence in Texas can Invalidate Wills, Deeds, and Other Instruments
Relationship Poisoning And Undue Influence
by Robert Ray | Last updated Jan 13, 2021 | Time limits, Undue Influence
In a 2019 case, a father had two daughters. He was an alcoholic and had a drug problem. One daughter lived close and saw him several times a week. The other daughter lived far away and saw him once or twice a year. Shortly before he died, the father changed all his accounts naming the daughter who lived close as the survivor of the accounts. He also deeded his real estate to the same daughter. He changed three of four life insurance policies to name only the daughter who live close by. One life insurance policy he left as it was leaving have to each daughter.
Shortly after the father died, the daughter who lived close by told her sister that her father did not have much and what he did have he had left to her. About six years after the father died, the sister who lived far away found out that her father’s estate was worth about $1 million. She filed suit against
the other sister claiming that her father was mentally incompetent to change the accounts or make the deeds and was being unduly influenced by her sister.
The claims were thrown out because the sister did not bring her claims within the statute of limitations. The court said “It is settled law in Texas that a contract executed by a person who lacks mental capacity is voidable, not void…A cause of action to void a contract is personal and belongs to the parties to a contract. The right to disaffirm a contract survives the death of an incompetent person and descends to his heirs or his personal representative…The right to disaffirm is subject to a four-year statute of limitations.” Because the complaining sister filed her claim after the statute of limitations had expired, her claim was dismissed.
If a person executes any document while they are mentally incompetent or under the undue influence of another, some action needs to be taken before the statute of limitations runs. 01-18-00661-CV.
