By Berman                                              H.B. No. 330
         77R1455 KLA-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to a durable power of attorney.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1.  Chapter XII, Texas Probate Code, is amended by
 1-5     adding Sections 482A and 488A to read as follows:
 1-6           Sec. 482A.  EFFECTIVENESS OF DURABLE POWER OF ATTORNEY
 1-7     CONDITIONAL ON NOTICE OF EXECUTION. (a)  On execution of a durable
 1-8     power of attorney, the principal shall give notice of the execution
 1-9     by certified mail, return receipt requested, to each person who, on
1-10     the date the durable power of attorney is executed, is related to
1-11     the principal within the second degree by consanguinity or affinity
1-12     and whose address is known or reasonably ascertainable.
1-13           (b)  The notice must identify the person appointed as the
1-14     principal's attorney in fact or agent under the durable power of
1-15     attorney.
1-16           (c)  A durable power of attorney takes effect according to
1-17     its terms only if the principal gives notice as required by this
1-18     section.
1-19           Sec. 488A.  REVOCATION OF DURABLE POWER OF ATTORNEY BY COURT
1-20     PROCEEDING. (a)  A person to whom notice is given under Section
1-21     482A of this code may  file an application for revocation of the
1-22     durable power of attorney with a court having probate jurisdiction
1-23     in the county in which the principal resides.
1-24           (b)  The court, after notice and hearing, shall revoke the
 2-1     durable power of attorney if the court determines by a
 2-2     preponderance of the evidence that the principal lacked sufficient
 2-3     mental capacity to execute the durable power of attorney as a
 2-4     result of mental illness or a brain injury or disorder, including
 2-5     dementia, Alzheimer's disease, or a related disorder, regardless of
 2-6     whether the illness, injury, or disorder had been diagnosed at the
 2-7     time the document was executed.
 2-8           (c)  The court, after notice and hearing, may revoke the
 2-9     durable power of attorney if the court determines by a
2-10     preponderance of the evidence that:
2-11                 (1)  the execution of the durable power of attorney was
2-12     a result of fraud, duress, coercion, or undue influence;
2-13                 (2)  the attorney in fact or agent has committed a
2-14     breach of a fiduciary duty; or
2-15                 (3)  the attorney in fact or agent has committed any
2-16     other act involving the management or control of the principal's
2-17     property under the durable power of attorney that would constitute
2-18     a ground for the revocation of the power of attorney.
2-19           SECTION 2.  Section 32.45(a)(1), Penal Code, is amended to
2-20     read as follows:
2-21                 (1)  "Fiduciary" includes:
2-22                       (A)  a trustee, guardian, administrator,
2-23     executor, conservator, and receiver;
2-24                       (B)  an attorney in fact or agent appointed under
2-25     a durable power of attorney as provided by Chapter XII, Texas
2-26     Probate Code;
2-27                       (C)  any other person acting in a fiduciary
 3-1     capacity, but not a commercial bailee unless the commercial bailee
 3-2     is a party in a motor fuel sales agreement with a distributor or
 3-3     supplier, as those terms are defined by Section 153.001, Tax Code;
 3-4     and
 3-5                       (D) [(C)]  an officer, manager, employee, or
 3-6     agent carrying on fiduciary functions on behalf of a fiduciary.
 3-7           SECTION 3.  This Act takes effect September 1, 2001, and the
 3-8     changes in law made by Section 1 of this Act apply only to a
 3-9     durable power of attorney, including a statutory durable power of
3-10     attorney, executed on or after that date.  A durable power of
3-11     attorney executed before that date is governed by the law in effect
3-12     on the date the durable power of attorney was executed, and the
3-13     former law is continued in effect for that purpose.