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.