Texas Estates Code 753.001 – Procedure for Removal
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(a) In this section, “person interested,” notwithstanding Section 22.018, has the meaning assigned by Section 1002.018.
(b) The following persons may file a petition under this section:
(1) any person named as a successor attorney in fact or agent in a durable power of attorney; or
(2) if the person with respect to whom a guardianship proceeding has been commenced is a principal who has executed a durable power of attorney, any person interested in the guardianship proceeding, including an attorney ad litem or guardian ad litem.
Terms Used In Texas Estates Code 753.001
- Court: means and includes:
(1) a county court in the exercise of its probate jurisdiction;
(2) a court created by statute and authorized to exercise original probate jurisdiction; and
(3) a district court exercising original probate jurisdiction in a contested matter. See Texas Estates Code 22.007 - Fiduciary: A trustee, executor, or administrator.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Person: includes a natural person and a corporation. See Texas Estates Code 22.027
- person interested: means :
(1) an heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate being administered; and
(2) anyone interested in the welfare of an incapacitated person, including a minor. See Texas Estates Code 22.018 - Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Probate: Proving a will
(c) On the petition of a person described by Subsection (b), a probate court, after a hearing, may enter an order:
(1) removing a person named and serving as an attorney in fact or agent under a durable power of attorney;
(2) authorizing the appointment of a successor attorney in fact or agent who is named in the durable power of attorney if the court finds that the successor attorney in fact or agent is willing to accept the authority granted under the power of attorney; and
(3) if compensation is allowed by the terms of the durable power of attorney, denying all or part of the removed attorney in fact’s or agent’s compensation.
(d) A court may enter an order under Subsection (c) if the court finds:
(1) that the attorney in fact or agent has breached the attorney in fact’s or agent’s fiduciary duties to the principal;
(2) that the attorney in fact or agent has materially violated or attempted to violate the terms of the durable power of attorney and the violation or attempted violation results in a material financial loss to the principal;
(3) that the attorney in fact or agent is incapacitated or is otherwise incapable of properly performing the attorney in fact’s or agent’s duties; or
(4) that the attorney in fact or agent has failed to make an accounting:
(A) that is required by Section 751.104 within the period prescribed by Section 751.105, by other law, or by the terms of the durable power of attorney; or
(B) as ordered by the court.