When a Sibling Uses a Parent's Power of Attorney to Steal: What Texas Law Lets You Do

The phone call came on a Tuesday afternoon in October, during Maria Garza's planning period at a middle school in Frisco.

Her father, Roberto, was 82 and had been living in McKinney with mild cognitive decline for three years. He still recognized his family. He still took his evening walks. But the checkbook was beyond him, and so three years earlier, Maria and her younger brother David had agreed that David — who lived closest to their father — would manage the finances under a durable power of attorney Roberto had signed with an attorney.

The arrangement seemed logical. Maria taught school an hour away. David was nearby. Trust among siblings was easy to assume.

What Maria didn't know was that during those three years, David had transferred $180,000 from their father's savings accounts into accounts he controlled. He had paid himself a "caretaking fee" of $2,000 a month. He had made a $40,000 "loan" to himself that existed only on a napkin. He had used Roberto's credit card for his own family's expenses.

When Maria finally got access to the bank statements — Roberto had mentioned, quietly confused, that he "didn't seem to have any money anymore" — the pattern was unmistakable.

Maria's first instinct was that fixing this would require a guardianship proceeding: that Roberto would need to be declared legally incapacitated, David removed, and a guardian appointed by a court — a process her friends described as taking a year, costing tens of thousands of dollars, and stripping her father of his legal independence in a way that felt wrong for a man who still read the morning paper and knew his grandchildren's names.

She was right that something needed to happen. She was wrong about what it had to be.

The Power of Attorney Your Parent Signed Is a Fiduciary Relationship — With Teeth

A durable power of attorney gives an agent remarkable authority. It can authorize someone to sell real estate, access bank accounts, pay bills, manage investments, and make legal decisions on behalf of the person who signed it — the "principal." Under Texas law, a durable POA remains effective even if the principal later becomes incapacitated. That is the whole point of making it durable.

What the power of attorney does not create is a slush fund.

An agent under a Texas power of attorney is a fiduciary. Chapter 751 of the Texas Estates Code imposes on every agent a duty to act in the principal's best interest, to keep the agent's own property completely separate from the principal's property, to maintain complete records of every transaction conducted on the principal's behalf, and to avoid self-dealing — including making gifts to the agent from the principal's assets, unless the power of attorney document explicitly authorizes such gifts and they serve the principal's interest.

This last point trips up many families. A sibling who believes that managing a parent's finances entitles them to compensation — even when the POA document is silent on the question — is not following Texas law. They are breaching a fiduciary duty. The money they paid themselves is a misappropriation, regardless of how much work they claim to have done.

And in Texas, misapplication of fiduciary property is not just a civil wrong.

Under Texas Penal Code § 32.45, intentional or knowing misapplication of property held in a fiduciary capacity — including as an agent under a power of attorney — is a criminal offense. The severity scales with the amount taken: misapplication of more than $2,500 is a state jail felony; more than $30,000 is a third-degree felony; more than $150,000 is a first-degree felony. A sibling who has transferred $180,000 to themselves using a parent's power of attorney has committed conduct that Texas classifies alongside other first-degree felonies.

What Most Families Don't Know: You Can Act Without a Guardianship

Here is the piece of Texas law that Maria did not know when she first called an attorney.

Texas Estates Code § 751.251(a)(5) gives a person who "demonstrates to the court's satisfaction that the person has an interest in the principal's welfare" the right to petition a court to review an agent's conduct under a power of attorney. Adult children of the principal have this standing. The statute does not require that a guardianship be filed, that the principal be declared legally incapacitated, or that the principal's authority over their own affairs be removed.

Under § 751.251, a court can:

• Order the agent to produce a complete accounting of all actions taken under the power of attorney
• Suspend the agent's authority while the review is pending
• Remove the agent entirely
• Revoke the power of attorney
• Award damages to the principal for the agent's breach of fiduciary duty
• Award attorneys' fees to the prevailing party

This mechanism exists precisely because the Texas Legislature recognized that waiting for a guardianship proceeding — slow, expensive, and legally consequential for the principal — would mean watching a vulnerable person's assets disappear while the legal machinery assembled itself. A family member with a reasonable belief that an agent is acting in bad faith can go to court now, without proving their parent is legally incompetent.

For Maria, this meant that Roberto — who still had legal capacity, could still make decisions, and had not been declared incapacitated by any court — retained his full legal independence throughout the proceeding. The target was not Roberto. It was David. The question was not whether Roberto could manage his own affairs, but whether David was faithfully managing the affairs he had been trusted to oversee.

The Reporting Duty Most Families Don't Know They Have

Here is a legal fact that surprises almost every family that finds themselves in Maria's position.

Under Texas Human Resources Code § 48.051(a), any person who has cause to believe that an elderly person — defined as 65 or older — is being abused, neglected, or exploited is required to report it to Adult Protective Services. This is not a duty limited to doctors, nurses, or social workers. It applies to every person, including adult children of the victim, including neighbors, and including bystanders. Under § 48.051(c), the duty applies without exception even to attorneys and clergy. Under § 48.052(a), knowing failure to report is a Class A misdemeanor.

An Adult Protective Services report does two things in this situation. First, it creates an official record that can support a civil proceeding and gives law enforcement a basis to investigate. Second, it may trigger a parallel criminal investigation — which can move faster and with more leverage than a civil case alone.

Reporting to APS at 1-800-252-5400 (available 24 hours) does not by itself recover the money. The funds taken must still be pursued through civil proceedings. But families who go directly to civil court without filing an APS report often learn later that the report, had it been filed early, would have accelerated and strengthened everything that followed.

What Recovery Actually Looks Like

Financial elder abuse cases in Texas typically involve several overlapping tracks — and understanding how they interact matters for getting to an outcome.

The civil petition under § 751.251 is usually the most immediate tool. Filing for judicial review of the agent's conduct allows the court to freeze the agent's authority while the case proceeds. The accounting the court can order produces documentation of every transaction — which becomes the foundation for the damages claim.

A separate civil suit for breach of fiduciary duty can recover the full amount misappropriated, plus interest, plus attorneys' fees in appropriate cases. Revoking the POA stops the bleeding. It does not automatically return the money. The money must be pursued through civil litigation, and Texas courts have clear authority to impose liability on agents who have breached the duties Chapter 751 imposes.

The criminal track — which begins with the APS report and may involve the district attorney's office or local law enforcement — does not replace the civil case, but it operates in parallel. In Collin County, Dallas County, and surrounding counties, financial elder abuse is taken seriously. A criminal investigation can compel cooperation, produce records through subpoenas that a civil litigant might not easily obtain, and motivate restitution in ways that a civil judgment alone sometimes cannot.

Maria's case did not resolve quickly. Nothing in this area of law does. But within eight weeks of filing the petition under § 751.251, the court had suspended David's authority, ordered a complete accounting, and frozen the accounts he had used to receive transfers. The civil case took another year. At the end of it, the court ordered David to repay a substantial portion of what had been taken, along with Maria's attorneys' fees.

Roberto never had to be declared legally incapacitated. The proceeding was about holding his son accountable — not declaring his father helpless.

Warning Signs That Come Before Discovery

If you are reading this because you suspect something may be happening — but you aren't certain — here are the patterns that elder law attorneys see most often in Texas financial abuse cases:

• The agent refuses to share bank statements, account balances, or financial records with other family members
• The principal's standard of living has noticeably declined, but there is no apparent explanation — no large medical expenses, no home repair, no major purchase the principal describes
• The principal mentions being confused about their finances, having less money than expected, or having signed documents they don't remember signing
• The agent has made payments to themselves, to their own household, or to their own children from the principal's accounts — without documentation in the POA
• The agent has added themselves as joint owner on the principal's accounts, changed beneficiary designations on life insurance or retirement accounts, or transferred title to real property
• The principal has executed a new will or changed their estate plan since the agent took over — and the changes favor the agent

None of these patterns is conclusive by itself. Each of them is a reason to consult with a Texas elder law attorney before the statute of limitations clock on civil claims begins to run.

If You Structured a Power of Attorney to Protect Against This

The best defense against agent abuse is an estate plan that anticipates the risk. A well-drafted estate plan can build meaningful accountability into the POA itself: requiring the agent to provide annual accountings to a third party, requiring co-agents to act jointly on transactions above a threshold, or designating a trusted successor agent who steps in if the primary is removed. None of these provisions appear in a standard statutory form — they have to be drafted deliberately.

If a parent has signed a power of attorney but no one is monitoring whether the agent is following it, the monitoring gap is the exposure. A proactive review — while the principal still has capacity to review and revise the document — is far less expensive than the litigation that follows discovery of abuse.

WG Law's elder law practice — led by Taylor Willingham, who has guided more than 10,000 Texas clients through estate planning and elder law matters — works with families both to design documents that reduce the risk of abuse and to respond when that risk has already materialized. Our offices in McKinney (7701 Eldorado Pkwy, Suite 200) and Southlake (1560 E Southlake Blvd, Suite 100, Office 116) serve clients throughout Collin County and the greater DFW area.

If you believe a parent is being exploited by someone holding power of attorney, the time to act is before more funds disappear. Call 214-250-4407 or request a consultation to discuss your situation.

This article is general information, not legal advice. Texas law on powers of attorney and elder financial exploitation is fact-specific and subject to change. If you are dealing with a specific legal situation, consult a licensed Texas attorney.