1-1  By:  Parker                                            S.B. No. 176
    1-2        (In the Senate - Filed January 26, 1993; January 27, 1993,
    1-3  read first time and referred to Committee on Jurisprudence;
    1-4  February 9, 1993, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 6, Nays 0;
    1-6  February 9, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Henderson          x                               
   1-10        Harris of Tarrant                              x   
   1-11        Brown              x                               
   1-12        Harris of Dallas   x                               
   1-13        Luna               x                               
   1-14        Parker             x                               
   1-15        West               x                               
   1-16  COMMITTEE SUBSTITUTE FOR S.B. No. 176                   By:  Parker
   1-17                         A BILL TO BE ENTITLED
   1-18                                AN ACT
   1-19  relating to the adoption of the Durable Power of Attorney Act.
   1-20        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-21        SECTION 1.  The Texas Probate Code is amended by adding
   1-22  Chapter XII to read as follows:
   1-23              CHAPTER XII.  DURABLE POWER OF ATTORNEY ACT
   1-24        Sec. 481.  SHORT TITLE.  This chapter may be cited as the
   1-25  Durable Power of Attorney Act.
   1-26        Sec. 482.  DEFINITION.  A "durable power of attorney" means a
   1-27  written instrument that:
   1-28              (1)  designates another person as attorney in fact or
   1-29  agent;
   1-30              (2)  is signed by an adult principal;
   1-31              (3)  contains the words "This power of attorney is not
   1-32  affected by subsequent disability or incapacity of the principal,"
   1-33  or "This power of attorney becomes effective on the disability or
   1-34  incapacity of the principal," or similar words showing the
   1-35  principal's intent that the authority conferred on the attorney in
   1-36  fact or agent shall be exercised notwithstanding the principal's
   1-37  subsequent disability or incapacity; and
   1-38              (4)  is acknowledged by the principal before an officer
   1-39  authorized to take acknowledgments to deeds of conveyance and to
   1-40  administer oaths under the laws of this state or any other state.
   1-41        Sec. 483.  DURATION.  A durable power of attorney does not
   1-42  lapse because of the passage of time unless the instrument creating
   1-43  the power of attorney specifically states a time limitation.
   1-44        Sec. 484.  EFFECT OF ACTS BY ATTORNEY IN FACT OR AGENT DURING
   1-45  INCAPACITY OF PRINCIPAL.  All acts done by an attorney in fact or
   1-46  agent pursuant to a durable power of attorney during any period of
   1-47  disability or incapacity of the principal have the same effect and
   1-48  inure to the benefit of and bind the principal and the principal's
   1-49  successors in interest as if the principal were not disabled or
   1-50  incapacitated.
   1-51        Sec. 485.  RELATION OF ATTORNEY IN FACT OR AGENT TO
   1-52  COURT-APPOINTED GUARDIAN OF ESTATE.  If, after execution of a
   1-53  durable power of attorney, a court of the principal's domicile
   1-54  appoints a guardian of the estate of the principal, the powers of
   1-55  the attorney in fact or agent terminate on the qualification of the
   1-56  guardian of the estate, and the attorney in fact or agent shall
   1-57  deliver to the guardian of the estate all assets of the estate of
   1-58  the ward in the attorney's or agent's possession and shall account
   1-59  to the guardian of the estate as the attorney or agent would to the
   1-60  principal had the principal terminated his powers.
   1-61        Sec. 486.  KNOWLEDGE OF DEATH, GUARDIAN OF ESTATE, OR
   1-62  REVOCATION; GOOD-FAITH ACTS.  The revocation by, the death of, or
   1-63  the qualification of a guardian of the estate of a principal who
   1-64  has executed a durable power of attorney does not revoke or
   1-65  terminate the agency as to the attorney in fact, agent, or other
   1-66  person who, without actual knowledge of the termination of the
   1-67  power by revocation, by the principal's death, or by the
   1-68  qualification of a guardian of the estate of the principal, acts in
    2-1  good faith under or in reliance on the power.  Any action so taken,
    2-2  unless otherwise invalid or unenforceable, binds successors in
    2-3  interest of the principal.
    2-4        Sec. 487.  AFFIDAVIT OF LACK OF KNOWLEDGE OR TERMINATION OF
    2-5  POWER; RECORDING.  (a)  As to acts undertaken in good-faith
    2-6  reliance on the durable power of attorney, an affidavit executed by
    2-7  the attorney in fact or agent under a durable power of attorney
    2-8  stating that the attorney in fact or agent did not have at the time
    2-9  of exercise of the power actual knowledge of the termination of the
   2-10  power by revocation, by the principal's death, or by the
   2-11  qualification of a guardian of the estate of the principal is
   2-12  conclusive proof as between the attorney in fact or agent and a
   2-13  person other than the principal or the principal's personal
   2-14  representative dealing with the attorney in fact or agent of the
   2-15  nonrevocation or nontermination of the power at that time.
   2-16        (b)  As to acts undertaken in good-faith reliance on the
   2-17  durable power of attorney, an affidavit executed by the attorney in
   2-18  fact or agent under a durable power of attorney stating that the
   2-19  principal is disabled or incapacitated, as defined by the power, is
   2-20  conclusive proof as between the attorney in fact or agent and a
   2-21  person other than the principal or the principal's personal
   2-22  representative dealing with the attorney in fact or agent of the
   2-23  disability or incapacity of the principal at that time.
   2-24        (c)  If the exercise of the power of attorney requires
   2-25  execution and delivery of any instrument that is to be recorded, an
   2-26  affidavit executed under Subsection (a) or (b) of this section,
   2-27  when authenticated for record, may also be recorded.
   2-28        (d)  This section does not affect any provision in a durable
   2-29  power of attorney for its termination by expiration of time or
   2-30  occurrence of an event other than express revocation.
   2-31        Sec. 488.  REVOCATION OF DURABLE POWER OF ATTORNEY.  Unless
   2-32  otherwise provided by the durable power of attorney, a revocation
   2-33  of a durable power of attorney is not effective as to a third party
   2-34  relying on the power of attorney until the third party receives
   2-35  actual notice of the revocation.
   2-36        Sec. 489.  RECORDING DURABLE POWER OF ATTORNEY FOR REAL
   2-37  PROPERTY TRANSACTIONS.  A durable power of attorney for a real
   2-38  property transaction requiring the execution and delivery of an
   2-39  instrument that is to be recorded, including a release, assignment,
   2-40  satisfaction, mortgage, security agreement, deed of trust,
   2-41  encumbrance, deed of conveyance, oil, gas, or other mineral lease,
   2-42  memorandum of a lease, lien, or other claim or right to real
   2-43  property, shall be recorded in the office of the county clerk of
   2-44  the county in which the property is located.
   2-45        Sec. 490.  STATUTORY DURABLE POWER OF ATTORNEY.  (a)  The
   2-46  following form is known as a "statutory durable power of attorney."
   2-47  A person may use a statutory durable power of attorney to grant an
   2-48  attorney in fact or agent powers with respect to a person's
   2-49  property and financial matters.  A power of attorney in
   2-50  substantially the following form has the meaning and effect
   2-51  prescribed by this chapter.  The validity of a power of attorney as
   2-52  meeting the requirements of a statutory durable power of attorney
   2-53  is not affected by the fact that one or more of the categories of
   2-54  optional powers listed in the form are struck or the form includes
   2-55  specific limitations on or additions to the attorney in fact's or
   2-56  agent's powers.
   2-57        When a power in substantially the form set forth in this
   2-58  chapter is used, third parties who rely in good faith on the acts
   2-59  of the agent within the scope of the power may do so without fear
   2-60  of liability to the principal.
   2-61        The following form is not exclusive, and other forms of power
   2-62  of attorney may be used.
   2-63                  STATUTORY DURABLE POWER OF ATTORNEY
   2-64  NOTICE:  THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND
   2-65  SWEEPING.  THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT,
   2-66  CHAPTER XII, TEXAS PROBATE CODE.  IF YOU HAVE ANY QUESTIONS ABOUT
   2-67  THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE.  THIS DOCUMENT DOES
   2-68  NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE
   2-69  DECISIONS FOR YOU.  YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU
   2-70  LATER WISH TO DO SO.
    3-1        I,                         (insert your name and address),
    3-2  appoint                             (insert the name and address of
    3-3  the person appointed) as my agent (attorney-in-fact) to act for me
    3-4  in any lawful way with respect to the following initialed subjects:
    3-5        TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN
    3-6  FRONT OF (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS.
    3-7        TO GRANT ONE OR MORE, BUT FEWER THAN ALL, OF THE FOLLOWING
    3-8  POWERS, INITIAL THE LINE IN FRONT OF EACH POWER YOU ARE GRANTING.
    3-9        TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF IT.
   3-10  YOU MAY, BUT NEED NOT, CROSS OUT EACH POWER WITHHELD.
   3-11  INITIAL
   3-12            (A)  real property transactions;
   3-13            (B)  tangible personal property transactions;
   3-14            (C)  stock and bond transactions;
   3-15            (D)  commodity and option transactions;
   3-16            (E)  banking and other financial institution
   3-17                 transactions;
   3-18            (F)  business operating transactions;
   3-19            (G)  insurance and annuity transactions;
   3-20            (H)  estate, trust, and other beneficiary transactions;
   3-21            (I)  claims and litigation;
   3-22            (J)  personal and family maintenance;
   3-23            (K)  benefits from social security, Medicare, Medicaid,
   3-24                 or other governmental programs or civil or military
   3-25                 service;
   3-26            (L)  retirement plan transactions;
   3-27            (M)  tax matters;
   3-28            (N)  ALL OF THE POWERS LISTED IN (A) THROUGH (M).  YOU
   3-29                 NEED NOT INITIAL ANY OTHER LINES IF YOU INITIAL LINE
   3-30                 (N).
   3-31                         SPECIAL INSTRUCTIONS:
   3-32        ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
   3-33  LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
   3-34  ___________________________________________________________________
   3-35  ___________________________________________________________________
   3-36  ___________________________________________________________________
   3-37  ___________________________________________________________________
   3-38  ___________________________________________________________________
   3-39  ___________________________________________________________________
   3-40  ___________________________________________________________________
   3-41  ___________________________________________________________________
   3-42  ___________________________________________________________________
   3-43  ___________________________________________________________________
   3-44        UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
   3-45  EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
   3-46        CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
   3-47  ALTERNATIVE NOT CHOSEN:
   3-48              (A)  This power of attorney is not affected by my
   3-49                   subsequent disability or incapacity.
   3-50              (B)  This power of attorney becomes effective upon my
   3-51                   disability or incapacity.
   3-52        YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
   3-53  IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
   3-54        IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED
   3-55  THAT YOU CHOSE ALTERNATIVE (A).
   3-56        I agree that any third party who receives a copy of this
   3-57  document may act under it.  Revocation of the durable power of
   3-58  attorney is not effective as to a third party until the third party
   3-59  receives actual notice of the revocation.  I agree to indemnify the
   3-60  third party for any claims that arise against the third party
   3-61  because of reliance on this power of attorney.
   3-62        If any agent named by me dies, becomes legally disabled,
   3-63  resigns, or refuses to act, I name the following (each to act alone
   3-64  and successively, in the order named) as successor(s) to that
   3-65  agent:                                           .
   3-66        Signed this ____________ day of ______________________, 19___
   3-67                                   __________________________________
   3-68                                   (your signature)
   3-69  State of ____________________
   3-70  County of ___________________
    4-1  This document was acknowledged before me on
    4-2  _______________________ (date) by _________________________________
    4-3                                        (name of principal)
    4-4                                    _________________________________
    4-5                                    (signature of notarial officer)
    4-6  (Seal, if any, of
    4-7  notary)         _________________________________
    4-8                                    (printed name)
    4-9                                    My commission expires:  _________
   4-10        THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
   4-11  THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
   4-12  RESPONSIBILITIES OF AN AGENT.
   4-13        (b)  A statutory durable power of attorney is legally
   4-14  sufficient under this chapter if the wording of the form complies
   4-15  substantially with Subsection (a) of this section, the form is
   4-16  properly completed, and the signature of the principal is
   4-17  acknowledged.
   4-18        (c)  If the line in front of (N) of the form under Subsection
   4-19  (a) of this section is initialed, an initial on the line in front
   4-20  of any other power does not limit the powers granted by line (N).
   4-21        Sec. 491.  CONSTRUCTION OF POWERS GENERALLY.  The principal,
   4-22  by executing a statutory durable power of attorney that confers
   4-23  authority with respect to any class of transactions, empowers the
   4-24  attorney in fact or agent for that class of transactions to:
   4-25              (1)  demand, receive, and obtain by litigation, action,
   4-26  or otherwise any money or other thing of value to which the
   4-27  principal is, may become, or may claim to be entitled;
   4-28              (2)  conserve, invest, disburse, or use any money or
   4-29  other thing of value received on behalf of the principal for the
   4-30  purposes intended;
   4-31              (3)  contract in any manner with any person, on terms
   4-32  agreeable to the attorney in fact or agent, to accomplish a purpose
   4-33  of a transaction and perform, rescind, reform, release, or modify
   4-34  the contract or another contract made by or on behalf of the
   4-35  principal;
   4-36              (4)  execute, acknowledge, seal, and deliver a deed,
   4-37  revocation, mortgage, lease, notice, check, release, or other
   4-38  instrument the agent considers desirable to accomplish a purpose of
   4-39  a transaction;
   4-40              (5)  prosecute, defend, submit to arbitration, settle,
   4-41  and propose or accept a compromise with respect to a claim existing
   4-42  in favor of or against the principal or intervene in an action or
   4-43  litigation relating to the claim;
   4-44              (6)  seek on the principal's behalf the assistance of a
   4-45  court to carry out an act authorized by the power of attorney;
   4-46              (7)  engage, compensate, and discharge an attorney,
   4-47  accountant, expert witness, or other assistant;
   4-48              (8)  keep appropriate records of each transaction,
   4-49  including an accounting of receipts and disbursements;
   4-50              (9)  prepare, execute, and file a record, report, or
   4-51  other document the attorney in fact or agent considers necessary or
   4-52  desirable to safeguard or promote the principal's interest under a
   4-53  statute or governmental regulation;
   4-54              (10)  reimburse the attorney in fact or agent for
   4-55  expenditures made in exercising the powers granted by the durable
   4-56  power of attorney; and
   4-57              (11)  in general, do any other lawful act that the
   4-58  principal may do with respect to a transaction.
   4-59        Sec. 492.  CONSTRUCTION OF POWER RELATING TO REAL PROPERTY
   4-60  TRANSACTIONS.  In a statutory durable power of attorney, the
   4-61  language conferring authority with respect to real property
   4-62  transactions empowers the attorney in fact or agent to:
   4-63              (1)  accept as a gift or as security for a loan or
   4-64  reject, demand, buy, lease, receive, or otherwise acquire an
   4-65  interest in real property or a right incident to real property;
   4-66              (2)  sell, exchange, convey with or without covenants,
   4-67  quitclaim, release, surrender, mortgage, encumber, partition,
   4-68  consent to partitioning, subdivide, apply for zoning, rezoning, or
   4-69  other governmental permits, plat or consent to platting, develop,
   4-70  grant options concerning, lease or sublet, or otherwise dispose of
    5-1  an estate or interest in real property or a right incident to real
    5-2  property;
    5-3              (3)  release, assign, satisfy, and enforce by
    5-4  litigation, action, or otherwise a mortgage, deed of trust,
    5-5  encumbrance, lien, or other claim to real property that exists or
    5-6  is claimed to exist;
    5-7              (4)  do any act of management or of conservation with
    5-8  respect to an interest in real property, or a right incident to
    5-9  real property, owned or claimed to be owned by the principal,
   5-10  including power to:
   5-11                    (A)  insure against a casualty, liability, or
   5-12  loss;
   5-13                    (B)  obtain or regain possession or protect the
   5-14  interest or right by litigation, action, or otherwise;
   5-15                    (C)  pay, compromise, or contest taxes or
   5-16  assessments or apply for and receive refunds in connection with
   5-17  them; and
   5-18                    (D)  purchase supplies, hire assistance or labor,
   5-19  or make repairs or alterations in the real property;
   5-20              (5)  use, develop, alter, replace, remove, erect, or
   5-21  install structures or other improvements on real property in which
   5-22  the principal has or claims to have an estate, interest, or right;
   5-23              (6)  participate in a reorganization with respect to
   5-24  real property or a legal entity that owns an interest in or right
   5-25  incident to real property, receive and hold shares of stock or
   5-26  obligations received in a plan or reorganization, and act with
   5-27  respect to the shares or obligations, including:
   5-28                    (A)  selling or otherwise disposing of the shares
   5-29  or obligations;
   5-30                    (B)  exercising or selling an option, conversion,
   5-31  or similar right with respect to the shares or obligations; and
   5-32                    (C)  voting the shares or obligations in person
   5-33  or by proxy;
   5-34              (7)  change the form of title of an interest in or
   5-35  right incident to real property; and
   5-36              (8)  dedicate easements or other real property in which
   5-37  the principal has or claims to have an interest to public use, with
   5-38  or without consideration.
   5-39        Sec. 493.  CONSTRUCTION OF POWER RELATING TO TANGIBLE
   5-40  PERSONAL PROPERTY TRANSACTIONS.  In a statutory durable power of
   5-41  attorney, the language conferring general authority with respect to
   5-42  tangible personal property transactions empowers the attorney in
   5-43  fact or agent to:
   5-44              (1)  accept as a gift or as security for a loan,
   5-45  reject, demand, buy, receive, or otherwise acquire ownership or
   5-46  possession of tangible personal property or an interest in tangible
   5-47  personal property;
   5-48              (2)  sell, exchange, convey with or without covenants,
   5-49  release, surrender, mortgage, encumber, pledge, hypothecate, create
   5-50  a security interest in, pawn, grant options concerning, lease or
   5-51  sublet to others, or otherwise dispose of tangible personal
   5-52  property or an interest in tangible personal property;
   5-53              (3)  release, assign, satisfy, or enforce by
   5-54  litigation, action, or otherwise a mortgage, security interest,
   5-55  encumbrance, lien, or other claim on behalf of the principal, with
   5-56  respect to tangible personal property or an interest in tangible
   5-57  personal property; and
   5-58              (4)  do an act of management or conservation with
   5-59  respect to tangible personal property or an interest in tangible
   5-60  personal property on behalf of the principal, including:
   5-61                    (A)  insuring against casualty, liability, or
   5-62  loss;
   5-63                    (B)  obtaining or regaining possession or
   5-64  protecting the property or interest by litigation, action, or
   5-65  otherwise;
   5-66                    (C)  paying, compromising, or contesting taxes or
   5-67  assessments or applying for and receiving refunds in connection
   5-68  with taxes or assessments;
   5-69                    (D)  moving from place to place;
   5-70                    (E)  storing for hire or on a gratuitous
    6-1  bailment; and
    6-2                    (F)  using, altering, and making repairs or
    6-3  alterations.
    6-4        Sec. 494.  CONSTRUCTION OF POWER RELATING TO STOCK AND BOND
    6-5  TRANSACTIONS.  In a statutory durable power of attorney, the
    6-6  language conferring authority with respect to stock and bond
    6-7  transactions empowers the attorney in fact or agent to buy, sell,
    6-8  and exchange stocks, bonds, mutual funds, and all other types of
    6-9  securities and financial instruments other than commodity futures
   6-10  contracts and call and put options on stocks and stock indexes,
   6-11  receive certificates and other evidences of ownership with respect
   6-12  to securities, exercise voting rights with respect to securities in
   6-13  person or by proxy, enter into voting trusts, and consent to
   6-14  limitations on the right to vote.
   6-15        Sec. 495.  CONSTRUCTION OF POWER RELATING TO COMMODITY AND
   6-16  OPTION TRANSACTIONS.  In a statutory durable power of attorney, the
   6-17  language conferring authority with respect to commodity and option
   6-18  transactions empowers the attorney in fact or agent to buy, sell,
   6-19  exchange, assign, settle, and exercise commodity futures contracts
   6-20  and call and put options on stocks and stock indexes traded on a
   6-21  regulated options exchange and establish, continue, modify, or
   6-22  terminate option accounts with a broker.
   6-23        Sec. 496.  CONSTRUCTION OF POWER RELATING TO BANKING AND
   6-24  OTHER FINANCIAL INSTITUTION TRANSACTIONS.  In a statutory durable
   6-25  power of attorney, the language conferring authority with respect
   6-26  to banking and other financial institution transactions empowers
   6-27  the attorney in fact or agent to:
   6-28              (1)  continue, modify, or terminate an account or other
   6-29  banking arrangement made by or on behalf of the principal;
   6-30              (2)  establish, modify, or terminate an account or
   6-31  other banking arrangement with a bank, trust company, savings and
   6-32  loan association, credit union, thrift company, brokerage firm, or
   6-33  other financial institution selected by the attorney in fact or
   6-34  agent;
   6-35              (3)  hire a safe deposit box or space in a vault;
   6-36              (4)  contract to procure other services available from
   6-37  a financial institution as the attorney in fact or agent considers
   6-38  desirable;
   6-39              (5)  withdraw by check, order, or otherwise money or
   6-40  property of the principal deposited with or left in the custody of
   6-41  a financial institution;
   6-42              (6)  receive bank statements, vouchers, notices, or
   6-43  similar documents from a financial institution and act with respect
   6-44  to them;
   6-45              (7)  enter a safe deposit box or vault and withdraw or
   6-46  add to the contents;
   6-47              (8)  borrow money at an interest rate agreeable to the
   6-48  attorney in fact or agent and pledge as security real or personal
   6-49  property of the principal necessary to borrow, pay, renew, or
   6-50  extend the time of payment of a debt of the principal;
   6-51              (9)  make, assign, draw, endorse, discount, guarantee,
   6-52  and negotiate promissory notes, bills of exchange, checks, drafts,
   6-53  or other negotiable or nonnegotiable paper of the principal, or
   6-54  payable to the principal or the principal's order, to receive the
   6-55  cash or other proceeds of those transactions, to accept a draft
   6-56  drawn by a person on the principal, and to pay the principal when
   6-57  due;
   6-58              (10)  receive for the principal and act on a sight
   6-59  draft, warehouse receipt, or other negotiable or nonnegotiable
   6-60  instrument;
   6-61              (11)  apply for and receive letters of credit, credit
   6-62  cards, and traveler's checks from a financial institution and give
   6-63  an indemnity or other agreement in connection with letters of
   6-64  credit; and
   6-65              (12)  consent to an extension of the time of payment
   6-66  with respect to commercial paper or a financial transaction with a
   6-67  financial institution.
   6-68        Sec. 497.  CONSTRUCTION OF POWER RELATING TO BUSINESS
   6-69  OPERATING TRANSACTIONS.  In a statutory durable power of attorney,
   6-70  the language conferring authority with respect to business
    7-1  operating transactions empowers the attorney in fact or agent to:
    7-2              (1)  operate, buy, sell, enlarge, reduce, or terminate
    7-3  a business interest;
    7-4              (2)  to the extent that an agent is permitted by law to
    7-5  act for a principal and subject to the terms of the partnership
    7-6  agreement:
    7-7                    (A)  perform a duty or discharge a liability or
    7-8  exercise a right, power, privilege, or option that the principal
    7-9  has, may have, or claims to have under a partnership agreement,
   7-10  whether or not the principal is a general or limited partner;
   7-11                    (B)  enforce the terms of a partnership agreement
   7-12  by litigation, action, or otherwise; and
   7-13                    (C)  defend, submit to arbitration, settle, or
   7-14  compromise litigation or an action to which the principal is a
   7-15  party because of membership in the partnership;
   7-16              (3)  exercise in person or by proxy or enforce by
   7-17  litigation, action, or otherwise a right, power, privilege, or
   7-18  option the principal has or claims to have as the holder of a bond,
   7-19  share, or other instrument of similar character and defend, submit
   7-20  to arbitration, settle, or compromise a legal proceeding to which
   7-21  the principal is a party because of a bond, share, or similar
   7-22  instrument;
   7-23              (4)  with respect to a business owned solely by the
   7-24  principal:
   7-25                    (A)  continue, modify, renegotiate, extend, and
   7-26  terminate a contract made with an individual or a legal entity,
   7-27  firm, association, or corporation by or on behalf of the principal
   7-28  with respect to the business before execution of the power of
   7-29  attorney;
   7-30                    (B)  determine:
   7-31                          (i)  the location of its operation;
   7-32                          (ii)  the nature and extent of its
   7-33  business;
   7-34                          (iii)  the methods of manufacturing,
   7-35  selling, merchandising, financing, accounting, and advertising
   7-36  employed in its operation;
   7-37                          (iv)  the amount and types of insurance
   7-38  carried; and
   7-39                          (v)  the mode of engaging, compensating,
   7-40  and dealing with its accountants, attorneys, and other agents and
   7-41  employees;
   7-42                    (C)  change the name or form of organization
   7-43  under which the business is operated and enter into a partnership
   7-44  agreement with other persons or organize a corporation to take over
   7-45  all or part of the operation of the business; and
   7-46                    (D)  demand and receive money due or claimed by
   7-47  the principal or on the principal's behalf in the operation of the
   7-48  business and control and disburse the money in the operation of the
   7-49  business;
   7-50              (5)  put additional capital into a business in which
   7-51  the principal has an interest;
   7-52              (6)  join in a plan of reorganization, consolidation,
   7-53  or merger of the business;
   7-54              (7)  sell or liquidate a business or part of it at the
   7-55  time and on the terms that the attorney in fact or agent considers
   7-56  desirable;
   7-57              (8)  establish the value of a business under a buy-out
   7-58  agreement to which the principal is a party;
   7-59              (9)  prepare, sign, file, and deliver reports,
   7-60  compilations of information, returns, or other papers with respect
   7-61  to a business that are required by a governmental agency,
   7-62  department, or instrumentality or that the attorney in fact or
   7-63  agent considers desirable and make related payments; and
   7-64              (10)  pay, compromise, or contest taxes or assessments
   7-65  and do any other act that the attorney in fact or agent considers
   7-66  desirable to protect the principal from illegal or unnecessary
   7-67  taxation, fines, penalties, or assessments with respect to a
   7-68  business, including attempts to recover, in any manner permitted by
   7-69  law, money paid before or after the execution of the power of
   7-70  attorney.
    8-1        Sec. 498.  CONSTRUCTION OF POWER RELATING TO INSURANCE
    8-2  TRANSACTIONS.  In a statutory durable power of attorney, the
    8-3  language conferring authority with respect to insurance and annuity
    8-4  transactions empowers the attorney in fact or agent to:
    8-5              (1)  continue, pay the premium or assessment on,
    8-6  modify, rescind, release, or terminate a contract procured by or on
    8-7  behalf of the principal that insures or provides an annuity to
    8-8  either the principal or another person, whether or not the
    8-9  principal is a beneficiary under the contract;
   8-10              (2)  procure new, different, or additional contracts of
   8-11  insurance and annuities for the principal or the principal's
   8-12  spouse, children, and other dependents and select the amount, type
   8-13  of insurance or annuity, and mode of payment;
   8-14              (3)  pay the premium or assessment on or modify,
   8-15  rescind, release, or terminate a contract of insurance or annuity
   8-16  procured by the attorney in fact or agent;
   8-17              (4)  designate the beneficiary of the contract, except
   8-18  that an attorney in fact or agent may be named a beneficiary of the
   8-19  contract or an extension, renewal, or substitute for the contract
   8-20  only to the extent the attorney in fact or agent was named as a
   8-21  beneficiary under a contract procured by the principal before
   8-22  executing the power of attorney;
   8-23              (5)  apply for and receive a loan on the security of
   8-24  the contract of insurance or annuity;
   8-25              (6)  surrender and receive the cash surrender value;
   8-26              (7)  exercise an election;
   8-27              (8)  change the manner of paying premiums;
   8-28              (9)  change or convert the type of insurance contract
   8-29  or annuity with respect to which the principal has or claims to
   8-30  have a power described in this section;
   8-31              (10)  change the beneficiary of a contract of insurance
   8-32  or annuity, except that the attorney in fact or agent may be
   8-33  designated a beneficiary only to the extent authorized by
   8-34  Subdivision (4) of this section;
   8-35              (11)  apply for and procure government aid to guarantee
   8-36  or pay premiums of a contract of insurance on the life of the
   8-37  principal;
   8-38              (12)  collect, sell, assign, hypothecate, borrow on, or
   8-39  pledge the interest of the principal in a contract of insurance or
   8-40  annuity; and
   8-41              (13)  pay from proceeds or otherwise, compromise or
   8-42  contest, or apply for refunds in connection with a tax or
   8-43  assessment levied by a taxing authority with respect to a contract
   8-44  of insurance or annuity or its proceeds or liability accruing
   8-45  because of the tax or assessment.
   8-46        Sec. 499.  CONSTRUCTION OF POWER RELATING TO ESTATE, TRUST,
   8-47  AND OTHER BENEFICIARY TRANSACTIONS.  In a statutory durable power
   8-48  of attorney, the language conferring authority with respect to
   8-49  estate, trust, and other beneficiary transactions empowers the
   8-50  attorney in fact or agent to act for the principal in all matters
   8-51  that affect a trust, probate estate, guardianship, conservatorship,
   8-52  escrow, custodianship, or other fund from which the principal is,
   8-53  may become, or claims to be entitled, as a beneficiary, to a share
   8-54  or payment, including to:
   8-55              (1)  accept, reject, disclaim, receive, receipt for,
   8-56  sell, assign, release, pledge, exchange, or consent to a reduction
   8-57  in or modification of a share in or payment from the fund;
   8-58              (2)  demand or obtain by litigation, action, or
   8-59  otherwise money or any other thing of value to which the principal
   8-60  is, may become, or claims to be entitled because of the fund;
   8-61              (3)  initiate, participate in, or oppose a legal or
   8-62  judicial proceeding to ascertain the meaning, validity, or effect
   8-63  of a deed, will, declaration of trust, or other instrument or
   8-64  transaction affecting the interest of the principal;
   8-65              (4)  initiate, participate in, or oppose a legal or
   8-66  judicial proceeding to remove, substitute, or surcharge a
   8-67  fiduciary;
   8-68              (5)  conserve, invest, disburse, or use anything
   8-69  received for an authorized purpose; and
   8-70              (6)  transfer all or part of an interest of the
    9-1  principal in real property, stocks, bonds, accounts with financial
    9-2  institutions, insurance, and other property to the trustee of a
    9-3  revocable trust created by the principal as settlor.
    9-4        Sec. 500.  CONSTRUCTION OF POWER RELATING TO CLAIMS AND
    9-5  LITIGATION.  In a statutory durable power of attorney, the language
    9-6  conferring general authority with respect to claims and litigation
    9-7  empowers the attorney in fact or agent to:
    9-8              (1)  assert and prosecute before a court or
    9-9  administrative agency a claim, a claim for relief, a counterclaim,
   9-10  or an offset or defend against an individual, a legal entity, or a
   9-11  government, including suits to recover property or other thing of
   9-12  value, to recover damages sustained by the principal, to eliminate
   9-13  or modify tax liability, or to seek an injunction, specific
   9-14  performance, or other relief;
   9-15              (2)  bring an action to determine adverse claims,
   9-16  intervene in an action or litigation, and act as amicus curiae;
   9-17              (3)  in connection with an action or litigation,
   9-18  procure an attachment, garnishment, libel, order of arrest, or
   9-19  other preliminary, provisional, or intermediate relief and use an
   9-20  available procedure to effect or satisfy a judgment, order, or
   9-21  decree;
   9-22              (4)  in connection with an action or litigation,
   9-23  perform any lawful act the principal could perform, including
   9-24  acceptance of tender, offer of judgment, admission of facts,
   9-25  submission of a controversy on an agreed statement of facts,
   9-26  consent to examination before trial, and binding of the principal
   9-27  in litigation;
   9-28              (5)  submit to arbitration, settle, and propose or
   9-29  accept a compromise with respect to a claim or litigation;
   9-30              (6)  waive the issuance and service of process on the
   9-31  principal, accept service of process, appear for the principal,
   9-32  designate persons on whom process directed to the principal may be
   9-33  served, execute and file or deliver stipulations on the principal's
   9-34  behalf, verify pleadings, seek appellate review, procure and give
   9-35  surety and indemnity bonds, contract and pay for the preparation
   9-36  and printing of records and briefs, receive and execute and file or
   9-37  deliver a consent, waiver, release, confession of judgment,
   9-38  satisfaction of judgment, notice, agreement, or other instrument in
   9-39  connection with the prosecution, settlement, or defense of a claim
   9-40  or litigation;
   9-41              (7)  act for the principal with respect to bankruptcy
   9-42  or insolvency proceedings, whether voluntary or involuntary,
   9-43  concerning the principal or some other person, with respect to a
   9-44  reorganization proceeding or a receivership or application for the
   9-45  appointment of a receiver or trustee that affects an interest of
   9-46  the principal in real or personal property or other thing of value;
   9-47  and
   9-48              (8)  pay a judgment against the principal or a
   9-49  settlement made in connection with a claim or litigation and
   9-50  receive and conserve money or other thing of value paid in
   9-51  settlement of or as proceeds of a claim or litigation.
   9-52        Sec. 501.  CONSTRUCTION OF POWER RELATING TO PERSONAL AND
   9-53  FAMILY MAINTENANCE.  In a statutory durable power of attorney, the
   9-54  language conferring authority with respect to personal and family
   9-55  maintenance empowers the attorney in fact or agent to:
   9-56              (1)  perform the acts necessary to maintain the
   9-57  customary standard of living of the principal, the principal's
   9-58  spouse and children, and other individuals customarily or legally
   9-59  entitled to be supported by the principal, including providing
   9-60  living quarters by purchase, lease, or other contract, or paying
   9-61  the operating costs, including interest, amortization payments,
   9-62  repairs, and taxes on premises owned by the principal and occupied
   9-63  by those individuals;
   9-64              (2)  provide for the individuals described by
   9-65  Subdivision (1) of this section normal domestic help, usual
   9-66  vacations and travel expenses, and funds for shelter, clothing,
   9-67  food, appropriate education, and other current living costs;
   9-68              (3)  pay necessary medical, dental, and surgical care,
   9-69  hospitalization, and custodial care for the individuals described
   9-70  by Subdivision (1) of this section;
   10-1              (4)  continue any provision made by the principal, for
   10-2  the individuals described by Subdivision (1) of this section, for
   10-3  automobiles or other means of transportation, including
   10-4  registering, licensing, insuring, and replacing the automobiles or
   10-5  other means of transportation;
   10-6              (5)  maintain or open charge accounts for the
   10-7  convenience of the individuals described by Subdivision (1) of this
   10-8  section and open new accounts the attorney in fact or agent
   10-9  considers desirable to accomplish a lawful purpose; and
  10-10              (6)  continue payments incidental to the membership or
  10-11  affiliation of the principal in a church, club, society, order, or
  10-12  other organization or to continue contributions to those
  10-13  organizations.
  10-14        Sec. 502.  CONSTRUCTION OF POWER RELATING TO BENEFITS FROM
  10-15  CERTAIN GOVERNMENTAL PROGRAMS OR CIVIL OR MILITARY SERVICE.  In a
  10-16  statutory durable power of attorney, the language conferring
  10-17  authority with respect to benefits from social security, Medicare,
  10-18  Medicaid, or other governmental programs or civil or military
  10-19  service empowers the attorney in fact or agent to:
  10-20              (1)  execute vouchers in the name of the principal for
  10-21  allowances and reimbursements payable by the United States, a
  10-22  foreign government, or a state or subdivision of a state to the
  10-23  principal, including allowances and reimbursements for
  10-24  transportation of the individuals described by Section 501(1) of
  10-25  this code, and for shipment of their household effects;
  10-26              (2)  take possession and order the removal and shipment
  10-27  of property of the principal from a post, warehouse, depot, dock,
  10-28  or other place of storage or safekeeping, either governmental or
  10-29  private, and execute and deliver a release, voucher, receipt, bill
  10-30  of lading, shipping ticket, certificate, or other instrument for
  10-31  that purpose;
  10-32              (3)  prepare, file, and prosecute a claim of the
  10-33  principal to a benefit or assistance, financial or otherwise, to
  10-34  which the principal claims to be entitled under a statute or
  10-35  governmental regulation;
  10-36              (4)  prosecute, defend, submit to arbitration, settle,
  10-37  and propose or accept a compromise with respect to any benefits the
  10-38  principal may be entitled to receive; and
  10-39              (5)  receive the financial proceeds of a claim of the
  10-40  type described in this section and conserve, invest, disburse, or
  10-41  use anything received for a lawful purpose.
  10-42        Sec. 503.  CONSTRUCTION OF POWER RELATING TO RETIREMENT PLAN
  10-43  TRANSACTIONS.  In a statutory durable power of attorney, the
  10-44  language conferring authority with respect to retirement plan
  10-45  transactions empowers the attorney in fact or agent to do any
  10-46  lawful act the principal may do with respect to a transaction
  10-47  relating to a retirement plan, including to:
  10-48              (1)  apply for service or disability retirement
  10-49  benefits;
  10-50              (2)  select payment options under any retirement plan
  10-51  in which the principal participates, including plans for
  10-52  self-employed individuals;
  10-53              (3)  designate or change the designation of a
  10-54  beneficiary or benefits payable by a retirement plan, except that
  10-55  an attorney in fact or agent may be named a beneficiary only to the
  10-56  extent the attorney in fact or agent was a named beneficiary under
  10-57  the retirement plan before the durable power of attorney was
  10-58  executed;
  10-59              (4)  make voluntary contributions to retirement plans
  10-60  if authorized by the plan;
  10-61              (5)  exercise the investment powers available under any
  10-62  self-directed retirement plan;
  10-63              (6)  make "rollovers" of plan benefits into other
  10-64  retirement plans;
  10-65              (7)  borrow from, sell assets to, and purchase assets
  10-66  from retirement plans if authorized by the plan;
  10-67              (8)  waive the right of the principal to be a
  10-68  beneficiary of a joint or survivor annuity if the principal is a
  10-69  spouse who is not employed;
  10-70              (9)  receive, endorse, and cash payments from a
   11-1  retirement plan;
   11-2              (10)  waive the right of the principal to receive all
   11-3  or a portion of benefits payable by a retirement plan; and
   11-4              (11)  request and receive information relating to the
   11-5  principal from retirement plan records.
   11-6        Sec. 504.  CONSTRUCTION OF POWER RELATING TO TAX MATTERS.  In
   11-7  a statutory durable power of attorney, the language conferring
   11-8  authority with respect to tax matters empowers the attorney in fact
   11-9  or agent to:
  11-10              (1)  prepare, sign, and file federal, state, local, and
  11-11  foreign income, gift, payroll, Federal Insurance Contributions Act,
  11-12  and other tax returns, claims for refunds, requests for extension
  11-13  of time, petitions regarding tax matters, and any other tax-related
  11-14  documents, including receipts, offers, waivers, consents, including
  11-15  consents and agreements under Section 2032A, Internal Revenue Code
  11-16  of 1986 (26 U.S.C. Section 2032A), closing agreements, and any
  11-17  power of attorney form required by the Internal Revenue Service or
  11-18  other taxing authority with respect to a tax year on which the
  11-19  statute of limitations has not run and 25 tax years following that
  11-20  tax year;
  11-21              (2)  pay taxes due, collect refunds, post bonds,
  11-22  receive confidential information, and contest deficiencies
  11-23  determined by the Internal Revenue Service or other taxing
  11-24  authority;
  11-25              (3)  exercise any election available to the principal
  11-26  under federal, state, local, or foreign tax law; and
  11-27              (4)  act for the principal in all tax matters for all
  11-28  periods before the Internal Revenue Service and any other taxing
  11-29  authority.
  11-30        Sec. 505.  EXISTING INTEREST; FOREIGN INTERESTS.  The powers
  11-31  described in Sections 492 through 504 of this code may be exercised
  11-32  equally with respect to an interest the principal has at the time
  11-33  the durable power of attorney is executed or acquires later,
  11-34  whether or not the property is located in this state and whether or
  11-35  not the powers are exercised or the durable power of attorney is
  11-36  executed in this state.
  11-37        Sec. 506.  UNIFORMITY OF APPLICATION AND CONSTRUCTION.  This
  11-38  chapter shall be applied and construed to effect its general
  11-39  purpose to make uniform the law with respect to the subject of this
  11-40  chapter among states enacting it.
  11-41        SECTION 2.  Section 36A, Probate Code, is repealed.  A power
  11-42  of attorney executed in compliance with that section before the
  11-43  effective date of this Act is valid according to the terms of that
  11-44  section as it existed at the time of the execution, and that
  11-45  section is continued in effect for that purpose.
  11-46        SECTION 3.  This Act takes effect September 1, 1993.
  11-47        SECTION 4.  The importance of this legislation and the
  11-48  crowded condition of the calendars in both houses create an
  11-49  emergency   and   an   imperative   public   necessity   that   the
  11-50  constitutional rule requiring bills to be read on three several
  11-51  days in each house be suspended, and this rule is hereby suspended.
  11-52                               * * * * *
  11-53                                                         Austin,
  11-54  Texas
  11-55                                                         February 9, 1993
  11-56  Hon. Bob Bullock
  11-57  President of the Senate
  11-58  Sir:
  11-59  We, your Committee on Jurisprudence to which was referred S.B. No.
  11-60  176, have had the same under consideration, and I am instructed to
  11-61  report it back to the Senate with the recommendation that it do not
  11-62  pass, but that the Committee Substitute adopted in lieu thereof do
  11-63  pass and be printed.
  11-64                                                         Henderson,
  11-65  Chairman
  11-66                               * * * * *
  11-67                               WITNESSES
  11-68                                                  FOR   AGAINST  ON
  11-69  ___________________________________________________________________
  11-70  Name:  Alvin Golden                              x
   12-1  Representing:  State Bar (reptl section)
   12-2  City:  Austin
   12-3  -------------------------------------------------------------------
   12-4  Name:  Dianne Hughes                             x
   12-5  Representing:  Trust Finance Service
   12-6      Division
   12-7  City:  Austin
   12-8  -------------------------------------------------------------------
   12-9  Name:  Karen M. Neeley                           x
  12-10  Representing:  Independent Bankers Assn
  12-11      oftx
  12-12  City:  Austin
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