Court Affirms Power Of Attorney Holder’s Right To Revoke Gift

Originally published by David Fowler Johnson.

In Wise v. Mitchell, a power of attorney holder, Mitchell, filed a revocation of a deed that the principal issued to Wise. No. 05-15-00610-CV, 2016 Tex. App. LEXIS 6502 (Tex. App.—Dallas June 20, 2016, no pet. history). After the principal’s death, Mitchell, as executor, moved for partial summary judgment to cancel the deed based on the revocation document, and the trial court granted that relief. Wise appealed, arguing in part that Mitchell did not have the authority to revoke the deed and that her revocation was not effective because she had not filed her power of attorney document in the public records before the revocation document was filed.

The court of appeals first addressed the filing requirement. The statute that was in effect at the time required that for a real estate transaction, a durable power of attorney form had to be filed in the office of the county clerk of the county in which the property was located. The court of appeals held that this did not require a particular sequence, and that Mitchell complied with this requirement by filing her form at the same time as the revocation document.

The court of appeals then addressed Mitchell’s authority to execute the revocation document. The court held that the power of attorney document was governed by former Texas Probate Code sections 481 through 489, which allowed for a non-statutory durable power of attorney form. The court held that the language of a power of attorney determines the extent of the authority conveyed to the agent, and that it would construe a power of attorney as a whole in order to ascertain the parties’ intentions and rights. The court held that the authority granted by a power of attorney is strictly construed, so as to exclude the exercise of any power that is not warranted either by the actual terms used, or as a necessary means of executing the authority with effect.

Here, the power of attorney document authorized Mitchell 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 purpose of carrying out the objects above mentioned.” The decedent placed no restrictions on the acts that Mitchell could take as her agent. The court noted that “Where an instrument is free from qualifying features either on its face or from the evidence, the agent has unlimited power to act in complete substitution for any act which the principal might himself do if present and acting.” Finally, because the deed was testamentary in nature and vested no interest in Wise prior to the decedent’s death, the Deed was subject to revocation by Mitchell acting as the decedent’s agent under the power of attorney. The court held that Mitchell had the power to revoke the deed and affirmed the trial court’s judgment for Mitchell.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today http://ift.tt/296tEwg
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