Fletcher v. Whitaker, No. 02-17-00138-CV, 2018 WL 4924944 (Tex. App.—Fort Worth Oct. 11, 2018, no pet.).


Durable Power of Attorney


Three individuals, Bob, Toby, and Geneva, opened a joint account with right of survivorship. Bob provided all the funds for the account. Toby died and Geneva used some of the funds for his funeral. Bob executed a durable power of attorney which, among other things, permitted Gary to deal with banking transactions. Gary withdrew $25,000 via a cashier’s check. Before it was cashed, both Gary and Bob signed the check. A few months later, Bob died. Bob’s executors then attempted to recover the funds Geneva used for Toby’s funeral and Geneva sought the funds Gary withdrew using Bob’s power of attorney. The trial court held that the Geneva did not have to repay the funeral withdrawal but that Gary along with the person to whom Gary gave some of the money, were responsible for paying Geneva the $25,000.


The appellate court agreed that Geneva’s conversion judgment for $25,000 was correct. Gary did not dispute that he breached his fiduciary by withdrawing the money, depositing it in his account, and using those funds for things other than Bob’s care. The court explained that Gary was not acting in Bob’s interest when he made the withdrawal and, despite Bob signing the check, he had “wrongfully exercise[d] dominion and control over the money to the exclusion of, or inconsistent with, Geneva’s rights.”


Moral:  An agent may not withdraw funds from the principal’s account and then use them for the agent’s own purposes.