In many ways, the 2017 legislative changes to the Texas Durable Power of Attorney Act (the “Act”) signaled a paradigm shift in litigation involving durable powers of attorney (“DPOA”). While there were many important changes to a variety of issues, this paper focus on those legislative changes which affect an agent’s self-dealing with his or her prinipal. For an excellent general overview of the legislative changes, these authors recommend reading Highlights of the New and Improved Texas Durable Power of Attorney Act: A Panel Discussion, written by Lora G. Davis and Donald L. Totusek.
Analyzing self-dealing transactions is no longer as simple as it may have once been. Under the old statutory scheme and case law, applying the traditional fiduciary analysis was generally fairly straightforward. Now, the scope of authority analysis is more complicated. The primary question appears to be, “Was the agent authorized by the terms of the DPOA to engage in the self-dealing transaction?” Then, assuming the answer is yes, the analysis shifts to whether the transaction constituted impermissible self-dealing.
The new statutory scheme does not lend itself to a quick reading and an easy answer. Many sections contain multi-layered exceptions and cross references to other sections.
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Mark R. Caldwell routinely represents executors, guardians, and beneficiaries in complex estate, trust, and guardianship litigation. He has also represented fiduciaries in all phases of estate, trust, and guardianship administration. Mark is passionate about holding those who exploit others accountable and defending those who have been wrongfully accused of doing so. Mark enjoys the investigatory aspects of estate and trust litigation, including reviewing and analyzing medical, financial, and suspicious property records and transactions. Mark is committed to developing and maintaining strong, personal relationships with his clients. He endeavors to offer smart, pragmatic and cost-effective legal advice. Mark believes that the strongest winning position is one that is simple, direct, and understandable.