Wise v. Mitchell, No. 05-15-00610-CV, 2016 WL 3398447 (Tex. App.—Dallas June 20, 2016, pet. denied).


Power of Attorney


Grandmother (Principal) transferred land to Grandson retaining a life estate, the authority to sell, and the power to change the remainder owners. Agent, under a durable power of attorney, entered into a contract to sell the land and filed a revocation of the original deed and alternatively, appointed different individuals as the remainder owners. Agent was later appointed as Principal’s guardian and requested court permission to sell the property. Before the court could rule on the motion, Principal died. Agent was then appointed as Principal’s executor. A protracted dispute arose between Grandson and Principal over the land. After Principal prevailed, Grandson appealed.


The appellate court affirmed. The court explained that Agent’s failure to file the durable power of attorney before entering into the real property transaction did not impact the validity of the revocation. In addition, the statutory provision Grandson alleged Agent did not follow was not part of Texas law although it is part of the Uniform Power of Attorney Act which Texas has not adopted. The court also explained that the form Principal used was not the statutory one and thus Agent’s powers are determined by its terms. The court determined that the language granting Agent the power to “perform any and all acts in my stead and to do and perform all such other matters as may be necessary and expedient for the purposes of carrying out the objects above mentioned” was sufficient to authorize Agent to revoke the deed.


Moral:  The facts in the case occurred prior to the enactment of the Texas Real Property Transfer on Death Act, Estates Code ch. 114. Although § 114.054(b) precludes the creation of a transfer on death deed by an agent, it does not speak to whether an agent may revoke an already existing TODD. To avoid controversy, prudent practice may be to expressly address this issue in the durable power of attorney.