## Facts

- In 1986, Gayl Hall Bradfield executed a written “General Power of Attorney” appointing Robert N. Virden as attorney-in-fact, effective only upon her “disability,” and stating the authority would not terminate due to disability or incompetency.
- In 1991, Bradfield created an inter vivos trust naming Comerica Bank–Texas as trustee; Bradfield was the lifetime beneficiary and designated remainder beneficiaries would take at her death.
- In 1991, Bradfield also executed a holographic will naming Texas Commerce Bank National Association as executor of her estate (later succeeded by Chase Bank of Texas).
- In 1995, Bradfield became incapacitated, triggering Virden’s authority under the power of attorney.
- After incapacity and before Bradfield’s death in 1997, Virden transferred assets held individually (and payable to Bradfield individually) into the trust, increasing the trust corpus and reducing the probate estate.
- After Bradfield’s death, the executor sued the trustee seeking declarations that the power of attorney was invalid or did not authorize the transfers, and sought a constructive trust over the transferred assets.
- The trial court granted partial summary judgment for the executor, holding the springing durable power of attorney was invalid; the trustee appealed.

## Issues

1. Whether a durable power of attorney executed in 1986 could validly become effective upon a future disability (a “springing” durable power) under then-existing Texas law.
2. If the power of attorney was valid, whether its language authorized the attorney-in-fact to transfer the principal’s individually owned assets into an existing trust benefiting remainder beneficiaries.
3. Whether equitable relief, including a constructive trust, was available to restore assets transferred without authority.

## Decision

- The court reversed the trial court’s ruling that the 1986 springing durable power of attorney was invalid, holding it met statutory durability requirements and was not prohibited merely because effectiveness was conditioned on disability.
- The court affirmed summary judgment against the trustee on the transfer issue, holding the power of attorney did not expressly authorize the challenged transfers into the trust.
- The court upheld the use of a constructive trust to recover or hold the improperly transferred assets for the benefit of the estate.
- The judgment was affirmed in part and reversed in part, with the estate prevailing as to the unauthorized-transfer remedy despite the power’s validity.

## Legal Principles

- A durable power of attorney is valid when executed with required formalities and includes language indicating it is not terminated by the principal’s disability or incompetency; conditioning effectiveness on disability does not, by itself, invalidate durability.
- An attorney-in-fact’s authority under a power of attorney is strictly construed; broad management powers do not imply authority to make gifts or materially alter disposition of property at death.
- Transfers by an attorney-in-fact that reallocate assets between a probate estate and an inter vivos trust, thereby conferring benefits on third parties, require clear and express authorization in the instrument.
- A constructive trust may be imposed as an equitable remedy to prevent retention of property acquired through an unauthorized exercise of fiduciary authority and to restore the property to the rightful owner (here, the estate).

## Conclusion

The court held that a springing durable power of attorney executed under 1986 Texas law could be valid, but absent explicit authorization to make donative or estate-plan-altering transfers, an attorney-in-fact may not move the principal’s individually owned assets into a trust, and equity may compel restoration of those assets to the estate through a constructive trust.


Comerica Bank-Tex. v. Tex. Com. Bank Nat’l Ass’n, 2 S.W.3d 723 (Tex. App.—Texarkana 1999, pet. denied)