In Bass v. Bogle, settlors, husband and wife, created a trust that owned the majority interest in a closely-held business, and they had two children. No. 03-23-00319-CV, 2024 Tex. App. LEXIS 5034 (Tex. App.—Austin July 18, 2024, no pet. history). After the wife became incapacitated, the husband amended the trust twice, using his wife’s power of attorney, changing the successor trustees to nonfamily members and the distribution of the shares. The couple’s power of attorney documents named their son as their successor agent. After the husband became incapacitated, the son used the power of attorney powers to amend the trust again, changing the successor trustees to himself and his sister and changing the distribution of the shares again back to himself and his sister. After the father died, litigation ensued as to who the correct successor trustees were and who should receive the shares. The trial court appointed a guardian ad litem for the mother, who was still alive but incapacitated. The ad litem filed a motion for summary judgment in favor of the settlors’ children. The trial court granted summary judgment for family and against the nonfamily members, and the nonfamily members appealed.

The court of appeals discussed the construction of a power of attorney document:

Under Texas law, “[w]hen we interpret a power of attorney, we construe the document as a whole in order to ascertain the parties’ intentions and rights.” “Under these rules of construction, powers of attorney, unlike deeds and wills, are to be strictly construed, and authority delegated is limited to the meaning of the terms in which it is expressed.” “And where there is a ‘very comprehensive’ grant of general power and an enumeration of specific powers, the established rules of construction limit the authority derived from the general grant of power to the acts authorized by the language employed in granting the special powers.

Id. The court then looked at the wife’s power of attorney document and discussed whether her husband had the power to amend the trust on her behalf:

Looking to the overall structure of the POA and the powers granted to her agent in its Article I, Nancy authorized her agent in the agent’s “sole and absolute discretion from time to time and at any time, as follows:” the “Power to Create, Fund, Amend, and Terminate Revocable Trusts,” and in contrast to the general rules for construing a POA, Nancy’s POA contains a directive that her agent’s powers be interpreted “broadly.” This provision expressly provides that “the authorization granted herein shall not be limited by any specific grant of power made in any other provision of this Durable [POA], but that instead, these authorizations, limited only as described above, shall be given the broadest possible construction permitted by law” and that rules requiring a narrow construction “have no application” to her POA. In Article I, Section 16, Nancy also authorized her agent “to exercise, in whole or in part, . . . any power of amendment or revocation under any trust, including any trust with respect to which I may exercise any such power only with the consent of another person, even if my Agent is such other person.” Considering these provisions in the context of Nancy’s POA as a whole, they make clear that the POA authorized George to amend the 1999 Trust on Nancy’s behalf. The GAL did not argue, and the probate court did not conclude, that any provision in Nancy’s POA was void or invalid.

…

Considering Nancy’s intent as expressed in the language of the POA, we conclude that the GAL failed to establish as a matter of law that the POA did not grant George power to amend the 1999 Trust Agreement on Nancy’s behalf. This conclusion, however, does not resolve this appeal because even if George generally had the authority to amend the 1999 Trust Agreement on Nancy’s behalf, the GAL also challenged George’s authority to amend the agreement in the manner that he did—specifically whether he was authorized to amend the distribution of trust assets on the death of Nancy and to replace the named successor co-trustees. We address each in turn.

Id.

The court held that the wife’s power of attorney document did not authorize her husband to change the distribution of trust assets:

The GAL argued that Nancy’s POA did not authorize George to change the distribution of the trust assets on Nancy’s death, relying on Article I, Section 14, the provision authorizing George to amend trusts. In this provision, Nancy authorized her agent to amend a revocable trust but expressly limited this authority by stating that “on my death any remaining income and principal shall be paid to my personal representative.” Under the terms of the 1999 Trust Agreement, the remaining trust property was to be distributed to the Children, consistent with Nancy’s estate plan. In direct conflict with this term, the 2021 Trust Agreement and its second amendment provided that on the death of Nancy, the Company shares held by the trust would be distributed to persons other than the Children. Based on the explicit limiting language in Article I, Section 14, we conclude that by changing the distribution of Company shares on Nancy’s death in the 2021 Trust Agreement and its amendments, George exceeded his authority under the POA as a matter of law. Thus, we conclude that the probate court did not err in part by granting summary judgment and declaring that the 2021 Trust Agreement and its amendments were void and invalid to the extent that they amended the distribution of the trust property on Nancy’s death to persons other than her personal representative.

Id. The court, however, found that the wife’s power of attorney document allowed her husband to change the successor trustees:

We reach a different conclusion concerning George’s authority under Nancy’s POA to replace Mike as the successor trustee under the 1999 Trust Agreement with Bass and Smith as the successor co-trustees under the 2021 Trust Agreement and its amendments. In Article I, Section 14 of the POA, Nancy explicitly authorized her agent “to execute a revocable trust agreement with such trustee or trustees as my Agent shall select.” Based on this provision’s plain language, we conclude that Nancy authorized George to amend the 1999 Trust to appoint different trustees.

Id. The ad litem argued that allowing the husband settlor to change successor trustee allowed him to change her estate plan and was therefore invalid. The court stated:

It follows that, even if this provision applied and naming successor co-trustees disrupted Nancy’s estate plan, whether it was “reasonably possible” for George to name different successor co-trustees without disrupting Nancy’s estate plan is a fact question. And the 2021 Trust Agreement contains a severability clause, such that “[i]f any wording, sentence, or article of the Trust is determined to be invalid [or] unenforceable,” “the remaining portions of the Trust remain legally valid and enforceable.”

Id. Thus, the court held that there was a fact issue on whether the exercise of the power of attorney by the husband to name new successor trustees was valid and reversed the summary judgment on that issue. The court concluded:

Thus, except as to the provisions amending the distribution of the trust assets on Nancy’s death, the probate court erred in granting summary judgment and declaring in the final judgment that: (i) the 2021 Trust Agreement and its amendments were void and invalid, (ii) Bass and Smith’s acceptance of trusteeship was invalid, and (iii) Mike and Katie are the successor co-trustees. On these bases, we sustain in part and overrule in part Bass and Smith’s first issue.

Id.