By Hilbert                                      H.B. No. 2361

      75R4387 BEM-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to durable powers of attorney.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  The Durable Power of Attorney Act (Section 481 et

 1-5     seq., Texas Probate Code) is amended by adding Section 485A to read

 1-6     as follows:

 1-7           Sec. 485A.  EFFECT OF PRINCIPAL'S DIVORCE OR MARRIAGE

 1-8     ANNULMENT IF FORMER SPOUSE IS ATTORNEY IN FACT OR AGENT.  If, after

 1-9     execution of a durable power of attorney, a principal is divorced

1-10     from a person who has been appointed the principal's attorney in

1-11     fact or agent or a principal's marriage to a person who has been

1-12     appointed the principal's attorney in fact or agent is annulled,

1-13     the powers of the attorney in fact or agent granted to the

1-14     principal's former spouse terminate on the date on which the

1-15     divorce or annulment of marriage is granted by a court, unless

1-16     otherwise expressly provided by the durable power of attorney.

1-17           SECTION 2.  Section 486, Durable Power of Attorney Act

1-18     (Section 481 et seq., Texas Probate Code), is amended to read as

1-19     follows:

1-20           Sec. 486.  KNOWLEDGE OF DEATH, GUARDIAN OF ESTATE, [OR]

1-21     REVOCATION, DIVORCE, OR MARRIAGE ANNULMENT; GOOD-FAITH ACTS.  (a)

1-22     The revocation by, the death of, or the qualification of a guardian

1-23     of the estate of a principal who has  executed a durable power of

1-24     attorney does not revoke or terminate the agency as to the attorney

 2-1     in fact, agent, or other person who, without actual knowledge of

 2-2     the termination of the power by revocation, by the principal's

 2-3     death, or by the qualification of a guardian of the estate of the

 2-4     principal, acts in good faith under or in reliance on the power.

 2-5           (b)  The divorce of a principal from a person who has been

 2-6     appointed the principal's attorney in fact or agent before the date

 2-7     on which the divorce is granted or the annulment of the marriage of

 2-8     a principal and a person who has been appointed the principal's

 2-9     attorney in fact or agent before the date the annulment is granted

2-10     does not revoke or terminate the agency as to a person other than

2-11     the principal's former spouse who, without actual knowledge of the

2-12     termination of the power on the divorce or annulment of the

2-13     marriage, acts in good faith under or in reliance on the power.

2-14           (c)  Any action [so] taken under this section, unless

2-15     otherwise invalid or unenforceable, binds successors in interest of

2-16     the principal.

2-17           SECTION 3.  Section 487, Durable Power of Attorney Act

2-18     (Section 481 et seq., Texas Probate Code), is amended to read as

2-19     follows:

2-20           Sec. 487.  AFFIDAVIT OF LACK OF KNOWLEDGE OR TERMINATION OF

2-21     POWER; RECORDING; GOOD-FAITH RELIANCE.  (a)  As to acts undertaken

2-22     in good-faith reliance on the durable power of attorney, an

2-23     affidavit executed by the attorney in fact or agent under a durable

2-24     power of attorney stating that the attorney in fact or agent did

2-25     not have at the time of exercise of the power actual knowledge of

2-26     the termination of the power by revocation, by the principal's

2-27     death, by the prinicipal's divorce from a person who has been

 3-1     appointed the principal's attorney in fact or agent, by the

 3-2     annulment of the marriage of the principal and a person who has

 3-3     been appointed the principal's attorney in fact or agent, or by the

 3-4     qualification of a guardian of the estate of the principal is

 3-5     conclusive proof as between the attorney in fact or agent and a

 3-6     person other than the principal or the principal's personal

 3-7     representative dealing with the attorney in fact or agent of the

 3-8     nonrevocation or nontermination of the power at that time.

 3-9           (b)  As to acts undertaken in good-faith reliance on the

3-10     durable power of attorney, an affidavit executed by the attorney in

3-11     fact or agent under a durable power of attorney stating that the

3-12     principal is disabled or incapacitated, as defined by the power, is

3-13     conclusive proof as between the attorney in fact or agent and a

3-14     person other than the principal or the principal's personal

3-15     representative dealing with the attorney in fact or agent of the

3-16     disability or incapacity of the principal at that time.

3-17           (c)  If the exercise of the power of attorney requires

3-18     execution and delivery of any instrument that is to be recorded, an

3-19     affidavit executed under Subsection (a) or (b) of this section,

3-20     when authenticated for record, may also be recorded.

3-21           (d)  This section does not affect any provision in a durable

3-22     power of attorney for its termination by expiration of time or

3-23     occurrence of an event other than express revocation.

3-24           (e)  When a durable power of attorney is used,  a third party

3-25     who relies in good faith on the acts of an  attorney in fact or

3-26     agent within the scope of the power of attorney is not liable to

3-27     the principal.

 4-1           SECTION 4.  Section 490(a), Durable Power of Attorney Act

 4-2     (Section 481 et seq., Texas Probate Code), is amended to read as

 4-3     follows:

 4-4           (a)  The following form is known as a "statutory durable

 4-5     power of attorney."  A person may use a statutory durable power of

 4-6     attorney to grant an attorney in fact or agent powers with respect

 4-7     to a person's property and financial matters.  A power of attorney

 4-8     in substantially the following form has the meaning and effect

 4-9     prescribed by this chapter.  The validity of a power of attorney as

4-10     meeting the requirements of a statutory durable power of attorney

4-11     is not affected by the fact that one or more of the categories of

4-12     optional powers listed in the form are struck or the form includes

4-13     specific limitations on or additions to the attorney in fact's or

4-14     agent's powers.

4-15           [When a power in substantially the form set forth in this

4-16     chapter is used, third parties who rely in good faith on the acts

4-17     of the agent within the scope of the power may do so without fear

4-18     of liability to the principal.]

4-19           The following form is not exclusive, and other forms of power

4-20     of attorney may be used.

4-21                     STATUTORY DURABLE POWER OF ATTORNEY

4-22     NOTICE:  THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND

4-23     SWEEPING.  THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT,

4-24     CHAPTER XII, TEXAS PROBATE CODE.  IF YOU HAVE ANY QUESTIONS ABOUT

4-25     THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE.  THIS DOCUMENT DOES

4-26     NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE

4-27     DECISIONS FOR YOU.  YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU

 5-1     LATER WISH TO DO SO.

 5-2           I, __________ (insert your name and address), [my social

 5-3     security number being __________ (insert your proper SS#),] appoint

 5-4     __________ (insert the name and address of the person appointed) as

 5-5     my agent (attorney-in-fact) to act for me in any lawful way with

 5-6     respect to all of the following powers except for a power that I

 5-7     have crossed out below.

 5-8           TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER WITHHELD.

 5-9                 Real property transactions;

5-10                 Tangible personal property transactions;

5-11                 Stock and bond transactions;

5-12                 Commodity and option transactions;

5-13                 Banking and other financial institution transactions;

5-14                 Business operating transactions;

5-15                 Insurance and annuity transactions;

5-16                 Estate, trust, and other beneficiary transactions;

5-17                 Claims and litigation;

5-18                 Personal and Family Maintenance;

5-19                 Benefits from social security, Medicare, Medicaid, or

5-20     other governmental programs or civil or military service;

5-21                 Retirement plan transactions;

5-22                 Tax matters.

5-23           IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL

5-24     BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY

5-25     AGENT (ATTORNEY IN FACT) HAS THE POWER AND AUTHORITY TO PERFORM OR

5-26     UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I WERE

5-27     PERSONALLY PRESENT

 6-1     [the following initialed subjects:]

 6-2           [TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN

 6-3     FRONT OF (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS.]

 6-4           [TO GRANT ONE OR MORE, BUT FEWER THAN ALL, OF THE FOLLOWING

 6-5     POWERS, INITIAL THE LINE IN FRONT OF EACH POWER YOU ARE GRANTING.]

 6-6           [TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF IT.

 6-7     YOU MAY, BUT NEED NOT, CROSS OUT EACH POWER WITHHELD.]

 6-8     [INITIAL]

 6-9     [_______ (A)  real property transactions;]

6-10     [_______ (B)  tangible personal property transactions;]

6-11     [_______ (C)  stock and bond transactions;]

6-12     [_______ (D)  commodity and option transactions;]

6-13     [_______ (E)  banking and other financial institution

6-14                   transactions;]

6-15     [_______ (F)  business operating transactions;]

6-16     [_______ (G)  insurance and annuity transactions;]

6-17     [_______ (H)  estate, trust, and other beneficiary transactions;]

6-18     [_______ (I)  claims and litigation;]

6-19     [_______ (J)  personal and family maintenance;]

6-20     [_______ (K)  benefits from social security, Medicare, Medicaid,

6-21                   or other

6-22     governmental programs or civil or military service;]

6-23     [_______ (L)  retirement plan transactions;]

6-24     [_______ (M)  tax matters;]

6-25     [_______ (N)  ALL OF THE POWERS LISTED IN (A) THROUGH (M).  YOU

6-26                   NEED NOT

6-27     INITIAL ANY OTHER LINES IF YOU INITIAL LINE (N)]. 

 7-1                            SPECIAL INSTRUCTIONS:

 7-2           Special instructions applicable to gifts (initial in front of

 7-3     the following sentence to have it apply):

 7-4           I grant my agent (attorney in fact) the power to apply my

 7-5     property to make gifts, except that the amount of a gift to an

 7-6     individual may not exceed the amount of annual exclusions allowed

 7-7     from the federal gift tax for the calendar year of the gift.

 7-8           ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS

 7-9     LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.

7-10     ___________________________________________________________________

7-11     ___________________________________________________________________

7-12     ___________________________________________________________________

7-13     ___________________________________________________________________

7-14     ___________________________________________________________________

7-15     ___________________________________________________________________

7-16     ___________________________________________________________________

7-17     ___________________________________________________________________

7-18     ___________________________________________________________________

7-19     ___________________________________________________________________

7-20           UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS

7-21     EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.

7-22           CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE

7-23     ALTERNATIVE NOT CHOSEN:

7-24                 (A)  This power of attorney is not affected by my

7-25     subsequent disability or incapacity.

7-26                 (B)  This power of attorney becomes effective upon my

7-27     disability or incapacity.

 8-1           YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY

 8-2     IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.

 8-3           IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED

 8-4     THAT YOU CHOSE ALTERNATIVE (A).

 8-5           If Alternative (B) is chosen and a definition of my

 8-6     disability or incapacity is not contained in this power of

 8-7     attorney, I shall be considered disabled or incapacitated for

 8-8     purposes of this power of attorney only if a physician certifies in

 8-9     writing at a date later than the date this power of attorney is

8-10     executed that, based on the physician's medical examination of me,

8-11     I am mentally incapable of managing my financial affairs.  I

8-12     authorize the physician who examines me for this purpose to

8-13     disclose my physical or mental condition to another person to

8-14     determine the nature of my incapacity or disability.  A third party

8-15     who accepts this power of attorney is fully protected from any

8-16     action taken under this power of attorney that is based on  the

8-17     determination made by a physician of my disability or incapacity.

8-18           I agree that any third party who receives a copy of this

8-19     document may act under it.  Revocation of the durable power of

8-20     attorney is not effective as to a third party until the third party

8-21     receives actual notice of the revocation.  I agree to indemnify the

8-22     third party for any claims that arise against the third party

8-23     because of reliance on this power of attorney.

8-24           If any agent named by me dies, becomes legally disabled,

8-25     resigns, or refuses to act, I name the following (each to act alone

8-26     and successively, in the order named) as successor(s) to that

8-27     agent:  __________.

 9-1           Signed this ______ day of __________, 19___

 9-2                                      __________________________________

 9-3                                      (your signature)                  

 9-4     State of _______________________

 9-5     County of ______________________

 9-6     This document was acknowledged before me on

 9-7     __________________________(date) by _______________________________

 9-8                                              (name of principal)

 9-9                                       _________________________________

9-10                                       (signature of notarial officer)  

9-11     (Seal, if any, of notary) ___________________________________

9-12                                             (printed name)

9-13                                      My commission expires:  __________

9-14           THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER

9-15     THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL

9-16     RESPONSIBILITIES OF AN AGENT.

9-17           SECTION 5.  Section 492, Durable Power of Attorney Act

9-18     (Section 481 et seq., Texas Probate Code), is amended to read as

9-19     follows:

9-20           Sec. 492.  CONSTRUCTION OF POWER RELATING TO REAL PROPERTY

9-21     TRANSACTIONS.  In a statutory durable power of attorney, the

9-22     language conferring authority with respect to real property

9-23     transactions empowers the attorney in fact or agent without further

9-24     reference to a specific description of the real property to:

9-25                 (1)  accept as a gift or as security for a loan or

9-26     reject, demand, buy, lease, receive, or otherwise acquire an

9-27     interest in real property or a right incident to real property;

 10-1                (2)  sell, exchange, convey with or without covenants,

 10-2    quitclaim, release, surrender, mortgage, encumber, partition,

 10-3    consent to partitioning, subdivide, apply for zoning, rezoning, or

 10-4    other governmental permits, plat or consent to platting, develop,

 10-5    grant options concerning, lease or sublet, or otherwise dispose of

 10-6    an estate or interest in real property or a right incident to real

 10-7    property;

 10-8                (3)  release, assign, satisfy, and enforce by

 10-9    litigation, action, or otherwise a mortgage, deed of trust,

10-10    encumbrance, lien, or other claim to real property that exists or

10-11    is claimed to exist;

10-12                (4)  do any act of management or of conservation with

10-13    respect to an interest in real property, or a right incident to

10-14    real property, owned or claimed to be owned by the principal,

10-15    including power to:

10-16                      (A)  insure against a casualty, liability, or

10-17    loss;

10-18                      (B)  obtain or regain possession or protect the

10-19    interest or right by litigation, action, or otherwise;

10-20                      (C)  pay, compromise, or contest taxes or

10-21    assessments or apply for and receive refunds in connection with

10-22    them; [and]

10-23                      (D)  purchase supplies, hire assistance or labor,

10-24    or make repairs or alterations in the real property; and

10-25                      (E)  manage and supervise an interest in real

10-26    property, including entering into a lease for oil, gas, and mineral

10-27    purposes, making contracts for development of the mineral estate,

 11-1    or making pooling and unitization agreements regarding the mineral

 11-2    estate;

 11-3                (5)  use, develop, alter, replace, remove, erect, or

 11-4    install structures or other improvements on real property in which

 11-5    the principal has or claims to have an estate, interest, or right;

 11-6                (6)  participate in a reorganization with respect to

 11-7    real property or a legal entity that owns an interest in or right

 11-8    incident to real property, receive and hold shares of stock or

 11-9    obligations received in a plan or reorganization, and act with

11-10    respect to the shares or obligations, including:

11-11                      (A)  selling or otherwise disposing of the shares

11-12    or obligations;

11-13                      (B)  exercising or selling an option, conversion,

11-14    or similar right with respect to the shares or obligations; and

11-15                      (C)  voting the shares or obligations in person

11-16    or by proxy;

11-17                (7)  change the form of title of an interest in or

11-18    right incident to real property; and

11-19                (8)  dedicate easements or other real property in which

11-20    the principal has or claims to have an interest to public use, with

11-21    or without consideration.

11-22          SECTION 6.  Section 503, Durable Power of Attorney Act

11-23    (Section 481 et seq., Texas Probate Code), is amended to read as

11-24    follows:

11-25          Sec. 503.  CONSTRUCTION OF POWER RELATING TO RETIREMENT PLAN

11-26    TRANSACTIONS.  (a)  In a statutory durable power of attorney, the

11-27    language conferring authority with respect to retirement plan

 12-1    transactions empowers the attorney in fact or agent to do any

 12-2    lawful act the principal may do with respect to a transaction

 12-3    relating to a retirement plan, including to:

 12-4                (1)  apply for service or disability retirement

 12-5    benefits;

 12-6                (2)  select payment options under any retirement plan

 12-7    in which the principal participates, including plans for

 12-8    self-employed individuals;

 12-9                (3)  designate or change the designation of a

12-10    beneficiary or benefits payable by a retirement plan, except that

12-11    an attorney in fact or agent may be named a beneficiary only to the

12-12    extent the attorney in fact or agent was a named beneficiary under

12-13    the retirement plan before the durable power of attorney was

12-14    executed;

12-15                (4)  make voluntary contributions to retirement plans

12-16    if authorized by the plan;

12-17                (5)  exercise the investment powers available under any

12-18    self-directed retirement plan;

12-19                (6)  make "rollovers" of plan benefits into other

12-20    retirement plans;

12-21                (7)  borrow from, sell assets to, and purchase assets

12-22    from retirement plans if authorized by the plan;

12-23                (8)  waive the right of the principal to be a

12-24    beneficiary of a joint or survivor annuity if the principal is a

12-25    spouse who is not employed;

12-26                (9)  receive, endorse, and cash payments from a

12-27    retirement plan;

 13-1                (10)  waive the right of the principal to receive all

 13-2    or a portion of benefits payable by a retirement plan; and

 13-3                (11)  request and receive information relating to the

 13-4    principal from retirement plan records.

 13-5          (b)  In this section, "retirement plan" means:

 13-6                (1)  an employee pension benefit plan as defined by

 13-7    Section 1002, Employee Retirement Income Security Act of 1974

 13-8    (ERISA) (29 U.S.C. Section 1002), without regard to the provisions

 13-9    of Section (2)(B) of that section;

13-10                (2)  a plan that does not meet the definition of an

13-11    employee benefit plan under ERISA because the plan does not cover

13-12    common law employees;

13-13                (3)  a plan that is similar to an employee benefit plan

13-14    under ERISA, regardless of whether it is covered by Title I of

13-15    ERISA, including a plan that provides death benefits to the

13-16    beneficiary of employees; and

13-17                (4)  an individual retirement account or annuity or a

13-18    self-employed pension plan or similar plan or account.

13-19          SECTION 7.  Section 490(c), Durable Power of Attorney Act

13-20    (Section 481 et seq., Texas Probate Code), is repealed.

13-21          SECTION 8.  This Act takes effect September 1, 1997, and

13-22    applies only to a durable power of attorney  or statutory durable

13-23    power of attorney that is executed on or after that date.  A

13-24    durable power of attorney or statutory durable power of attorney

13-25    that is executed before the effective date of this Act is governed

13-26    by the law in effect on the date the power of attorney was

13-27    executed, and the former law is continued in effect for that

 14-1    purpose.

 14-2          SECTION 9.  The importance of this legislation and the

 14-3    crowded condition of the calendars in both houses create an

 14-4    emergency and an imperative public necessity that the

 14-5    constitutional rule requiring bills to be read on three several

 14-6    days in each house be suspended, and this rule is hereby suspended.