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).
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.