Amend HB 1883 by striking all below the enacting clause and
substituting the following:
SECTION 5. Section 488, Texas Probate Code, is amended to
read as follows:
Sec. 488. REVOCATION OF DURABLE POWER OF ATTORNEY OR
STATUTORY DURABLE POWER OF ATTORNEY. (a) A principal may revoke a
statutory durable power of attorney by:
(1) filing notice of the revocation of the statutory
durable power of attorney in the office of the county clerk of the
county in which the statutory durable power of attorney was
recorded; and
(2) giving notice, orally or in writing, of revocation
filed under Subdivision (1) of this subsection to the attorney in
fact or agent.
(b) On receiving notification of a revocation of a statutory
durable power of attorney, the attorney in fact or agent must
return to the principal any of the principal's property
administered by the attorney in fact or agent in accordance with
the statutory durable power of attorney.
(c) Unless otherwise provided by the durable power of
attorney, a revocation of a durable power of attorney is not
effective as to a third party relying on the power of attorney
until the third party receives actual notice of the revocation.
SECTION 6. Section 489, Texas Probate Code, is amended to
read as follows:
Sec. 489. RECORDING DURABLE POWER OF ATTORNEY OR STATUTORY
DURABLE POWER OF ATTORNEY; PROHIBITED <FOR REAL PROPERTY>
TRANSACTIONS. (a) A statutory durable power of attorney and the
statement of the principal required by Section 489A of this code
shall be recorded in the county in which the principal resides.
(b) A durable power of attorney for a real property
transaction requiring the execution and delivery of an instrument
that is to be recorded, including a release, assignment,
satisfaction, mortgage, security agreement, deed of trust,
encumbrance, deed of conveyance, oil, gas, or other mineral lease,
memorandum of a lease, lien, or other claim or right to real
property, shall also be recorded in the office of the county clerk
of the county in which the property is located.
(c) After execution of a durable power of attorney, the
attorney in fact or agent may not engage in a real property
transaction or a tangible personal property transaction pursuant to
the power of attorney before the 11th day after the date on which
the power of attorney is recorded.
SECTION 7. Chapter XII, Texas Probate Code, is amended by
adding Sections 489A and 489B to read as follows:
Sec. 489A. REQUIRED DISCLOSURE STATEMENT FOR STATUTORY
DURABLE POWER OF ATTORNEY. (a) A statutory durable power of
attorney is not effective unless the principal, on or before
executing the statutory durable power of attorney, signs a
statement declaring that the principal has received, read, and
understood the disclosure statement.
(b) A statement in substantially the form of the disclosure
statement contained in the statutory durable power of attorney in
Section 490 of this code has the meaning and effect prescribed by
Subsection (a) of this section.
Sec. 489B. ACCOUNTING RECORDS. (a) The attorney in fact or
agent of a principal empowered to act for the principal with regard
to a class of transactions under a durable power of attorney or
statutory durable power of attorney shall maintain appropriate
records of each transaction, including an accounting of receipts
and disbursements.
(b) Within the period prescribed by Subsection (c) of this
section, the attorney in fact or agent shall make any transaction
records available, on request, to the principal or any guardian or
other personal representative of the principal's estate, for
inspection and review. If the attorney in fact or agent fails to
comply with a request made under this subsection, the person making
the request may file in a court of proper jurisdiction a petition
for an order to enforce the request. After notice and hearing, the
court may order the attorney in fact or agent to make the records
available to the petitioner for inspection and review.
(c) The attorney in fact or agent shall maintain the records
until at least the fourth anniversary of the date the durable power
of attorney or statutory durable power of attorney expires or is
expressly revoked by the principal.
SECTION 8. Section 490, Texas Probate Code, is amended to
read as follows:
Sec. 490. ]SSTATUTORY DURABLE POWER OF ATTORNEY . (a) The
following form is known as a "statutory durable power of attorney."
A person may use a statutory durable power of attorney to grant an
attorney in fact or agent powers with respect to a person's
property and financial matters. A power of attorney in
substantially the following form has the meaning and effect
prescribed by this chapter. The validity of a power of attorney as
meeting the requirements of a statutory durable power of attorney
is not affected by the fact that <one or more of the categories of
optional powers listed in the form are struck or> the form includes
specific limitations on or additions to the attorney in fact's or
agent's powers.
The following form is not exclusive, and other forms of power
of attorney may be used.
STATUTORY DURABLE POWER OF ATTORNEY WITH DISCLOSURE STATEMENT
A. DISCLOSURE STATEMENT: Information Concerning the Statutory
Durable Power of Attorney
THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. You are
authorizing the person named as your agent (attorney-in-fact) to
act with full legal power and authority on your behalf with respect
to your property or financial matters without court approval or
supervision. The agent (attorney-in-fact) may take any action
relating to the powers you have initialed on this document. YOU
SHOULD NOT APPOINT A PERSON AS YOUR AGENT (ATTORNEY-IN-FACT) UNLESS
YOU HAVE COMPLETE TRUST AND CONFIDENCE IN THE PERSON. If, for
example, you give your agent (attorney-in-fact) the power to handle
real property transactions on your behalf, your agent
(attorney-in-fact) will be able to bind you on all the transactions
set out in Section 492, Texas Probate Code, including the sale of
your real property. In deciding whether you want your agent to
have a particular power, you should read the corresponding
statutory provisions (Sections 491-504, Texas Probate Code). If
you have any questions about this document or a power granted in
the document, you should obtain legal advice from an attorney of
your choice.
You may wish to designate a successor agent (attorney-in-fact) in
the event that your agent (attorney-in-fact) is unwilling, unable,
or ineligible to act as your agent (attorney-in-fact). A successor
agent (attorney-in-fact) designated by you will have the same
authority as the agent (attorney-in-fact) to make property or
financial matter decisions for you.
EVEN AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO
MAKE PROPERTY OR FINANCIAL MATTER DECISIONS FOR YOURSELF SO LONG AS
YOU ARE ABLE TO DO SO.
YOU MAY REVOKE THIS POWER OF ATTORNEY AT ANY TIME IF YOU WISH TO DO
SO. To revoke a statutory durable power of attorney, you must file
a notice of revocation with the county clerk in the county in which
the statutory durable power of attorney is recorded. You must also
inform the agent (attorney-in-fact) orally or in writing that you
are terminating the person's authority under the statutory durable
power of attorney. If you are aware of a third party who has
transacted business with the agent (attorney-in-fact) acting under
the statutory durable power of attorney, you should send the third
party notice that the agent (attorney-in-fact) no longer has
authority to act on your behalf under the statutory durable power
of attorney.
IF YOU HAVE A QUESTION ABOUT HOW YOUR AGENT (ATTORNEY-IN-FACT) IS
HANDLING YOUR PROPERTY OR FINANCIAL MATTERS, YOU ARE ENTITLED TO
RECEIVE AN ACCOUNTING FROM THE AGENT (ATTORNEY-IN-FACT). Your
right to an accounting is described in this document. You also are
entitled to have any property administered by your agent
(attorney-in-fact) returned to you when you revoke the statutory
durable power of attorney or when your agent (attorney-in-fact)
resigns.
THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL OR HEALTH
CARE DECISIONS FOR YOU. You may authorize an agent
(attorney-in-fact) to make those types of decisions on your behalf
under a medical power of attorney.
Sign below to acknowledge your receipt of this disclosure statement
before you sign the statutory durable power of attorney to affirm
that YOU HAVE BEEN GIVEN THE OPPORTUNITY TO:
(1) READ THIS DISCLOSURE STATEMENT AND THE ATTACHED
STATUTORY POWERS; and
(2) ASK ABOUT THE SCOPE OF ANY POWERS THAT YOU DO NOT FULLY
UNDERSTAND.
_________________________ Date:________________
Principal's Signature
B. APPOINTMENT; GRANTING OF POWERS
<NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND
SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT,
CHAPTER XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT
THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS
FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO
DO SO.>
I, __________ (insert your name and address), appoint
__________ (insert the name and address of the person appointed) as
my agent (attorney-in-fact) to act for me in any lawful way with
respect to all of the following powers that I have initialed
<except for a power that I have crossed out below>.
TO GRANT ALL OF THE FOLLOWING POWERS, EXCLUDING REAL PROPERTY
TRANSACTIONS, INITIAL THE LINE IN FRONT OF (M) AND IGNORE THE LINES
IN FRONT OF THE OTHER POWERS LISTED IN (A) THROUGH (L).
TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
POWER.
TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
<YOU MUST CROSS OUT EACH> POWER <WITHHELD>. YOU MAY, BUT DO NOT
NEED TO, CROSS OUT EACH POWER WITHHELD.
___(A) <Real property transactions;> Tangible personal property
transactions;
___(B) Stock and bond transactions;
___(C) Commodity and option transactions;
___(D) Banking and other financial institution transactions;
___(E) Business operating transactions;
___(F) Insurance and annuity transactions;
___(G) Estate, trust, and other beneficiary transactions;
___(H) Claims and litigation;
___(I) Personal and family maintenance;
___(J) Benefits from social security, Medicare, Medicaid, or other
governmental programs or civil or military service;
___(K) Retirement plan transactions;
___(L) Tax matters;
___(M) ALL OF THE POWERS LISTED IN (A) THROUGH (L). YOU DO NOT
HAVE TO INITIAL THE LINES IN FRONT OF ANY OTHER POWER THAT DOES NOT
INVOLVE REAL PROPERTY TRANSACTIONS IF YOU INITIAL LINE (M).
TO GRANT A POWER INVOLVING REAL PROPERTY TRANSACTIONS,
INITIAL THE LINE IN FRONT OF ONE OF THE FOLLOWING POWERS. TO GRANT
A POWER INVOLVING YOUR HOMESTEAD, INITIAL THE LINE IN FRONT OF (N).
___(N) All real property transactions, including transactions
involving your homestead;
___(O) Any real property transactions under $50,000, excluding
your homestead;
___(P) All real property transactions, excluding your homestead.
<IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL
BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY
AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO
PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I
WERE PERSONALLY PRESENT.>
SPECIAL INSTRUCTIONS:
Special instructions applicable to gifts (initial in front of
the following sentence to have it apply):
I grant my agent (attorney in fact) the power to apply my
property to make gifts, except that the amount of a gift to an
individual may not exceed the amount of annual exclusions allowed
from the federal gift tax for the calendar year of the gift.
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT
(ATTORNEY-IN-FACT).
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
ALTERNATIVE NOT CHOSEN:
(A) This power of attorney is not affected by my subsequent
disability or incapacity.
(B) This power of attorney becomes effective upon my
disability or incapacity.
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED
THAT YOU CHOSE ALTERNATIVE (A).
If Alternative (B) is chosen and a definition of my
disability or incapacity is not contained in this power of
attorney, I shall be considered disabled or incapacitated for
purposes of this power of attorney if a physician certifies in
writing at a date later than the date this power of attorney is
executed that, based on the physician's medical examination of me,
I am mentally incapable of managing my financial affairs. I
authorize the physician who examines me for this purpose to
disclose my physical or mental condition to another person for
purposes of this power of attorney. A third party who accepts this
power of attorney is fully protected from any action taken under
this power of attorney that is based on the determination made by a
physician of my disability or incapacity.
I agree that any third party who receives a copy of this
document may act under it. Revocation of the durable power of
attorney is not effective as to a third party until the third party
receives actual notice of the revocation. I agree to indemnify the
third party for any claims that arise against the third party
because of reliance on this power of attorney.
I shall record this power of attorney and the disclosure
statement in _______ County. I may revoke this power of attorney
by recording a notice of revocation in the office of the county
clerk in the same county in which the power of attorney is recorded
and by giving my agent (attorney-in-fact) written or oral notice of
the revocation.
If any agent named by me dies, becomes legally disabled,
resigns, or refuses to act, I name the following (each to act alone
and successively, in the order named) as successor(s) to that
agent: __________.
Signed this ______ day of __________, 20 <19>___
______________________________
(your signature)
______________________________
(signature of witness)
YOU MAY REQUEST YOUR AGENT (ATTORNEY-IN-FACT) OR SUCCESSOR
AGENT (ATTORNEY-IN-FACT) TO PROVIDE A SAMPLE SIGNATURE ON THE LINE
BELOW. IF YOUR AGENT (ATTORNEY-IN-FACT) OR SUCCESSOR AGENT
(ATTORNEY-IN-FACT) PROVIDES A SAMPLE SIGNATURE, YOU MUST SIGN THE
CERTIFICATION TO THE RIGHT OF THE AGENT'S (ATTORNEY-IN-FACT'S)
SIGNATURE.
Sample signature of agent I certify that the signature
or successor agent to the left of my signature is
that of my agent or successor
agent
_________________________ _________________________
(agent) (principal)
_________________________ _________________________
(successor agent) (principal)
_________________________ _________________________
(successor agent) (principal)
THIS POWER OF ATTORNEY IS NOT EFFECTIVE UNLESS IT IS
NOTARIZED AND SIGNED BY AT LEAST ONE WITNESS WHO IS NOT THE
PRINCIPAL, THE AGENT (ATTORNEY-IN-FACT), SUCCESSOR AGENT
(ATTORNEY-IN-FACT), OR NOTARY AND THE DISCLOSURE STATEMENT IS
SIGNED BY THE PRINCIPAL.
State of _______________________
County of ______________________
Before me, the undersigned authority, on this day personally
appeared __________________ (insert name of principal) and
__________________ (insert name of witness), known to me to be the
principal and witness, respectively, of this power of attorney.
The principal of this power of attorney declared to me that the
execution of this power of attorney is the free and voluntary act
of the principal and that the principal is of sound mind. The
undersigned witness stated to me that the principal of this power
of attorney declared to me that the execution of this power of
attorney is the free and voluntary act of the principal and that
the principal is of sound mind.
______________________
Principal
______________________
Witness
Subscribed and sworn to before me by __________________,
principal, and by ____________, witness, this ______ day of
____________, 20____
(SEAL)
____________________________
(signature of notarial officer)
____________________________
(printed name)
My commission expires:_________ <This document was acknowledged
before me on>
<_______________________>]L(date) by ___________________________
<(name of principal)>
<___________________>
<(signature of notarial officer)>
<(Seal, if any, of notary) ______________________________>
<(printed name)>
<My commission expires:_________>
THE ATTORNEY-IN-FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
RESPONSIBILITIES OF AN AGENT AND IS RESPONSIBLE FOR MAINTAINING
APPROPRIATE RECORDS OF EACH TRANSACTION, INCLUDING AN ACCOUNTING OF
RECEIPTS AND DISBURSEMENTS, UNTIL THE FOURTH ANNIVERSARY OF THE
DATE THIS POWER OF ATTORNEY EXPIRES OR IS EXPRESSLY REVOKED BY THE
PRINCIPAL. AS A FIDUCIARY, AN ATTORNEY-IN-FACT OR AGENT IS HELD TO
THE HIGHEST STANDARDS OF GOOD FAITH, FAIR DEALING, AND LOYALTY WITH
RESPECT TO THE PRINCIPAL. FAILURE TO ADHERE TO THESE STANDARDS MAY
SUBJECT AN ATTORNEY-IN-FACT OR AGENT TO LEGAL ACTION. DEPENDING ON
THE DEGREE OF MISCONDUCT, AN ATTORNEY-IN-FACT OR AGENT MAY BE
LIABLE FOR DAMAGES OR MAY BE CHARGED WITH A CRIMINAL OFFENSE.
(b) A statutory durable power of attorney is legally
sufficient under this chapter if the wording of the form complies
substantially with Subsection (a) of this section, the form is
properly completed, and the signature of the principal is
acknowledged.
(c) If a principal initials the line in front of (M) in a
statutory durable power of attorney, initials in front of another
power listed in (A) through (L) of the power of attorney do not
limit the powers granted by (M).
SECTION 9. This Act takes effect September 1, 2001, and the
changes in law made by this Act apply only to a durable power of
attorney or statutory durable power of attorney that is executed on
or after that date. A durable power of attorney or statutory
durable power of attorney that is executed before the effective
date of this Act is governed by the law in effect on the date the
power of attorney was executed, and that law is continued in effect
for that purpose.