By Thompson H.B. No. 1883
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to durable powers of attorney and statutory durable powers
1-3 of attorney.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 488, Texas Probate Code, is amended to
1-6 read as follows:
1-7 Sec. 488. REVOCATION OF DURABLE POWER OF ATTORNEY OR
1-8 STATUTORY DURABLE POWER OF ATTORNEY. (a) A principal may revoke a
1-9 statutory durable power of attorney by:
1-10 (1) filing notice of the revocation of the statutory
1-11 durable power of attorney in the office of the county clerk of the
1-12 county in which the statutory durable power of attorney was
1-13 recorded; and
1-14 (2) giving notice, orally or in writing, of revocation
1-15 filed under Subdivision (1) of this subsection to the attorney in
1-16 fact or agent.
1-17 (b) On receiving notification of a revocation of a statutory
1-18 durable power of attorney, the attorney in fact or agent must
1-19 return to the principal any of the principal's property
1-20 administered by the attorney in fact or agent in accordance with
1-21 the statutory durable power of attorney.
1-22 (c) Unless otherwise provided by the durable power of
1-23 attorney, a revocation of a durable power of attorney is not
1-24 effective as to a third party relying on the power of attorney
2-1 until the third party receives actual notice of the revocation.
2-2 SECTION 2. Section 489, Texas Probate Code, is amended to
2-3 read as follows:
2-4 Sec. 489. RECORDING DURABLE POWER OF ATTORNEY OR STATUTORY
2-5 DURABLE POWER OF ATTORNEY; PROHIBITED [FOR REAL PROPERTY]
2-6 TRANSACTIONS. (a) A statutory durable power of attorney and the
2-7 statement of the principal required by Section 489A of this code
2-8 shall be recorded in the county in which the principal resides.
2-9 (b) A durable power of attorney for a real property
2-10 transaction requiring the execution and delivery of an instrument
2-11 that is to be recorded, including a release, assignment,
2-12 satisfaction, mortgage, security agreement, deed of trust,
2-13 encumbrance, deed of conveyance, oil, gas, or other mineral lease,
2-14 memorandum of a lease, lien, or other claim or right to real
2-15 property, shall also be recorded in the office of the county clerk
2-16 of the county in which the property is located.
2-17 (c) After execution of a durable power of attorney, the
2-18 attorney in fact or agent may not engage in a real property
2-19 transaction or a tangible personal property transaction pursuant to
2-20 the power of attorney before the 11th day after the date on which
2-21 the power of attorney is recorded.
2-22 SECTION 3. Chapter XII, Texas Probate Code, is amended by
2-23 adding Sections 489A and 489B to read as follows:
2-24 Sec. 489A. REQUIRED DISCLOSURE STATEMENT FOR STATUTORY
2-25 DURABLE POWER OF ATTORNEY. (a) A statutory durable power of
2-26 attorney is not effective unless the principal, on or before
2-27 executing the statutory durable power of attorney, signs a
3-1 statement declaring that the principal has received, read, and
3-2 understood the disclosure statement.
3-3 (b) A statement in substantially the form of the disclosure
3-4 statement contained in the statutory durable power of attorney in
3-5 Section 490 of this code has the meaning and effect prescribed by
3-6 Subsection (a) of this section.
3-7 Sec. 489B. ACCOUNTING RECORDS. (a) The attorney in fact or
3-8 agent of a principal empowered to act for the principal with regard
3-9 to a class of transactions under a durable power of attorney or
3-10 statutory durable power of attorney shall maintain appropriate
3-11 records of each transaction, including an accounting of receipts
3-12 and disbursements.
3-13 (b) Within the period prescribed by Subsection (c) of this
3-14 section, the attorney in fact or agent shall make any transaction
3-15 records available, on request, to the principal or any guardian or
3-16 other personal representative of the principal's estate, for
3-17 inspection and review. If the attorney in fact or agent fails to
3-18 comply with a request made under this subsection, the person making
3-19 the request may file in a court of proper jurisdiction a petition
3-20 for an order to enforce the request. After notice and hearing, the
3-21 court may order the attorney in fact or agent to make the records
3-22 available to the petitioner for inspection and review.
3-23 (c) The attorney in fact or agent shall maintain the records
3-24 until at least the fourth anniversary of the date the durable power
3-25 of attorney or statutory durable power of attorney expires or is
3-26 expressly revoked by the principal.
3-27 SECTION 4. Section 490, Texas Probate Code, is amended to
4-1 read as follows:
4-2 Sec. 490. Statutory Durable Power of Attorney. (a) The
4-3 following form is known as a "statutory durable power of attorney."
4-4 A person may use a statutory durable power of attorney to grant an
4-5 attorney in fact or agent powers with respect to a person's
4-6 property and financial matters. A power of attorney in
4-7 substantially the following form has the meaning and effect
4-8 prescribed by this chapter. The validity of a power of attorney as
4-9 meeting the requirements of a statutory durable power of attorney
4-10 is not affected by the fact that [one or more of the categories of
4-11 optional powers listed in the form are struck or] the form includes
4-12 specific limitations on or additions to the attorney in fact's or
4-13 agent's powers.
4-14 The following form is not exclusive, and other forms of power
4-15 of attorney may be used.
4-16 STATUTORY DURABLE POWER OF ATTORNEY WITH DISCLOSURE STATEMENT
4-17 A. DISCLOSURE STATEMENT: Information Concerning the Statutory
4-18 Durable Power of Attorney
4-19 THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. You are
4-20 authorizing the person named as your agent (attorney-in-fact) to
4-21 act with full legal power and authority on your behalf with respect
4-22 to your property or financial matters without court approval or
4-23 supervision. The agent (attorney-in-fact) may take any action
4-24 relating to the powers you have initialed on this document. YOU
4-25 SHOULD NOT APPOINT A PERSON AS YOUR AGENT (ATTORNEY-IN-FACT) UNLESS
4-26 YOU HAVE COMPLETE TRUST AND CONFIDENCE IN THE PERSON. If, for
4-27 example, you give your agent (attorney-in-fact) the power to handle
5-1 real property transactions on your behalf, your agent
5-2 (attorney-in-fact) will be able to bind you on all the transactions
5-3 set out in Section 492, Texas Probate Code, including the sale of
5-4 your real property. In deciding whether you want your agent to
5-5 have a particular power, you should read the corresponding
5-6 statutory provisions (Sections 491-504, Texas Probate Code). If
5-7 you have any questions about this document or a power granted in
5-8 the document, you should obtain legal advice from an attorney of
5-9 your choice.
5-10 You may wish to designate a successor agent (attorney-in-fact) in
5-11 the event that your agent (attorney-in-fact) is unwilling, unable,
5-12 or ineligible to act as your agent (attorney-in-fact). A successor
5-13 agent (attorney-in-fact) designated by you will have the same
5-14 authority as the agent (attorney-in-fact) to make property or
5-15 financial matter decisions for you.
5-16 EVEN AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO
5-17 MAKE PROPERTY OR FINANCIAL MATTER DECISIONS FOR YOURSELF SO LONG AS
5-18 YOU ARE ABLE TO DO SO.
5-19 YOU MAY REVOKE THIS POWER OF ATTORNEY AT ANY TIME IF YOU WISH TO DO
5-20 SO. To revoke a statutory durable power of attorney, you must file
5-21 a notice of revocation with the county clerk in the county in which
5-22 the statutory durable power of attorney is recorded. You must also
5-23 inform the agent (attorney-in-fact) orally or in writing that you
5-24 are terminating the person's authority under the statutory durable
5-25 power of attorney. If you are aware of a third party who has
5-26 transacted business with the agent (attorney-in-fact) acting under
5-27 the statutory durable power of attorney, you should send the third
6-1 party notice that the agent (attorney-in-fact) no longer has
6-2 authority to act on your behalf under the statutory durable power
6-3 of attorney.
6-4 IF YOU HAVE A QUESTION ABOUT HOW YOUR AGENT (ATTORNEY-IN-FACT) IS
6-5 HANDLING YOUR PROPERTY OR FINANCIAL MATTERS, YOU ARE ENTITLED TO
6-6 RECEIVE AN ACCOUNTING FROM THE AGENT (ATTORNEY-IN-FACT). Your
6-7 right to an accounting is described in this document. You also are
6-8 entitled to have any property administered by your agent
6-9 (attorney-in-fact) returned to you when you revoke the statutory
6-10 durable power of attorney or when your agent (attorney-in-fact)
6-11 resigns.
6-12 THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL OR HEALTH
6-13 CARE DECISIONS FOR YOU. You may authorize an agent
6-14 (attorney-in-fact) to make those types of decisions on your behalf
6-15 under a medical power of attorney.
6-16 Sign below to acknowledge your receipt of this disclosure statement
6-17 before you sign the statutory durable power of attorney to affirm
6-18 that YOU HAVE BEEN GIVEN THE OPPORTUNITY TO:
6-19 (1) READ THIS DISCLOSURE STATEMENT AND THE ATTACHED
6-20 STATUTORY POWERS; and
6-21 (2) ASK ABOUT THE SCOPE OF ANY POWERS THAT YOU DO NOT FULLY
6-22 UNDERSTAND.
6-23 _________________________ Date:________________
6-24 Principal's Signature
6-25 B. APPOINTMENT; GRANTING OF POWERS
6-26 [NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND
6-27 SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT,
7-1 CHAPTER XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT
7-2 THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
7-3 AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS
7-4 FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO
7-5 DO SO.]
7-6 I, __________ (insert your name and address), appoint
7-7 __________ (insert the name and address of the person appointed) as
7-8 my agent (attorney-in-fact) to act for me in any lawful way with
7-9 respect to all of the following powers that I have initialed
7-10 [except for a power that I have crossed out below].
7-11 TO GRANT ALL OF THE FOLLOWING POWERS, EXCLUDING REAL PROPERTY
7-12 TRANSACTIONS, INITIAL THE LINE IN FRONT OF (M) AND IGNORE THE LINES
7-13 IN FRONT OF THE OTHER POWERS LISTED IN (A) THROUGH (L).
7-14 TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
7-15 POWER.
7-16 TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
7-17 [YOU MUST CROSS OUT EACH] POWER [WITHHELD]. YOU MAY, BUT DO NOT
7-18 NEED TO, CROSS OUT EACH POWER WITHHELD.
7-19 ___(A) [Real property transactions;] Tangible personal property
7-20 transactions;
7-21 ___(B) Stock and bond transactions;
7-22 ___(C) Commodity and option transactions;
7-23 ___(D) Banking and other financial institution transactions;
7-24 ___(E) Business operating transactions;
7-25 ___(F) Insurance and annuity transactions;
7-26 ___(G) Estate, trust, and other beneficiary transactions;
7-27 ___(H) Claims and litigation;
8-1 ___(I) Personal and family maintenance;
8-2 ___(J) Benefits from social security, Medicare, Medicaid, or other
8-3 governmental programs or civil or military service;
8-4 ___(K) Retirement plan transactions;
8-5 ___(L) Tax matters;
8-6 ___(M) ALL OF THE POWERS LISTED IN (A) THROUGH (L). YOU DO NOT
8-7 HAVE TO INITIAL THE LINES IN FRONT OF ANY OTHER POWER THAT DOES NOT
8-8 INVOLVE REAL PROPERTY TRANSACTIONS IF YOU INITIAL LINE (M).
8-9 TO GRANT A POWER INVOLVING REAL PROPERTY TRANSACTIONS,
8-10 INITIAL THE LINE IN FRONT OF ONE OF THE FOLLOWING POWERS. TO GRANT
8-11 A POWER INVOLVING YOUR HOMESTEAD, INITIAL THE LINE IN FRONT OF (N).
8-12 ___(N) All real property transactions, including transactions
8-13 involving your homestead;
8-14 ___(O) Any real property transactions under $50,000, excluding
8-15 your homestead;
8-16 ___(P) All real property transactions, excluding your homestead.
8-17 [IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL
8-18 BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY
8-19 AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO
8-20 PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I
8-21 WERE PERSONALLY PRESENT.]
8-22 SPECIAL INSTRUCTIONS:
8-23 Special instructions applicable to gifts (initial in front of
8-24 the following sentence to have it apply):
8-25 I grant my agent (attorney in fact) the power to apply my
8-26 property to make gifts, except that the amount of a gift to an
8-27 individual may not exceed the amount of annual exclusions allowed
9-1 from the federal gift tax for the calendar year of the gift.
9-2 ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
9-3 LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT
9-4 (ATTORNEY-IN-FACT).
9-5 __________________________________________________________________
9-6 __________________________________________________________________
9-7 __________________________________________________________________
9-8 __________________________________________________________________
9-9 __________________________________________________________________
9-10 __________________________________________________________________
9-11 __________________________________________________________________
9-12 __________________________________________________________________
9-13 __________________________________________________________________
9-14 __________________________________________________________________
9-15 UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
9-16 EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
9-17 CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
9-18 ALTERNATIVE NOT CHOSEN:
9-19 (A) This power of attorney is not affected by my subsequent
9-20 disability or incapacity.
9-21 (B) This power of attorney becomes effective upon my
9-22 disability or incapacity.
9-23 YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
9-24 IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
9-25 IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED
9-26 THAT YOU CHOSE ALTERNATIVE (A).
9-27 If Alternative (B) is chosen and a definition of my
10-1 disability or incapacity is not contained in this power of
10-2 attorney, I shall be considered disabled or incapacitated for
10-3 purposes of this power of attorney if a physician certifies in
10-4 writing at a date later than the date this power of attorney is
10-5 executed that, based on the physician's medical examination of me,
10-6 I am mentally incapable of managing my financial affairs. I
10-7 authorize the physician who examines me for this purpose to
10-8 disclose my physical or mental condition to another person for
10-9 purposes of this power of attorney. A third party who accepts this
10-10 power of attorney is fully protected from any action taken under
10-11 this power of attorney that is based on the determination made by a
10-12 physician of my disability or incapacity.
10-13 I agree that any third party who receives a copy of this
10-14 document may act under it. Revocation of the durable power of
10-15 attorney is not effective as to a third party until the third party
10-16 receives actual notice of the revocation. I agree to indemnify the
10-17 third party for any claims that arise against the third party
10-18 because of reliance on this power of attorney.
10-19 I shall record this power of attorney and the disclosure
10-20 statement in _______ County. I may revoke this power of attorney
10-21 by recording a notice of revocation in the office of the county
10-22 clerk in the same county in which the power of attorney is recorded
10-23 and by giving my agent (attorney-in-fact) written or oral notice of
10-24 the revocation.
10-25 If any agent named by me dies, becomes legally disabled,
10-26 resigns, or refuses to act, I name the following (each to act alone
10-27 and successively, in the order named) as successor(s) to that
11-1 agent: __________.
11-2 Signed this ______ day of __________, 20 [19]___
11-3 ______________________________
11-4 (your signature)
11-5 ______________________________
11-6 (signature of witness)
11-7 YOU MAY REQUEST YOUR AGENT (ATTORNEY-IN-FACT) OR SUCCESSOR
11-8 AGENT (ATTORNEY-IN-FACT) TO PROVIDE A SAMPLE SIGNATURE ON THE LINE
11-9 BELOW. IF YOUR AGENT (ATTORNEY-IN-FACT) OR SUCCESSOR AGENT
11-10 (ATTORNEY-IN-FACT) PROVIDES A SAMPLE SIGNATURE, YOU MUST SIGN THE
11-11 CERTIFICATION TO THE RIGHT OF THE AGENT'S (ATTORNEY-IN-FACT'S)
11-12 SIGNATURE.
11-13 Sample signature of agent I certify that the signature
11-14 or successor agent to the left of my signature is
11-15 that of my agent or successor
11-16 agent
11-17 _________________________ _________________________
11-18 (agent) (principal)
11-19 _________________________ _________________________
11-20 (successor agent) (principal)
11-21 _________________________ _________________________
11-22 (successor agent) (principal)
11-23 THIS POWER OF ATTORNEY IS NOT EFFECTIVE UNLESS IT IS
11-24 NOTARIZED AND SIGNED BY AT LEAST ONE WITNESS WHO IS NOT THE
11-25 PRINCIPAL, THE AGENT (ATTORNEY-IN-FACT), SUCCESSOR AGENT
11-26 (ATTORNEY-IN-FACT), OR NOTARY AND THE DISCLOSURE STATEMENT IS
11-27 SIGNED BY THE PRINCIPAL.
12-1 State of _______________________
12-2 County of ______________________
12-3 Before me, the undersigned authority, on this day personally
12-4 appeared __________________ (insert name of principal) and
12-5 __________________ (insert name of witness), known to me to be the
12-6 principal and witness, respectively, of this power of attorney.
12-7 The principal of this power of attorney declared to me that the
12-8 execution of this power of attorney is the free and voluntary act
12-9 of the principal and that the principal is of sound mind. The
12-10 undersigned witness stated to me that the principal of this power
12-11 of attorney declared to me that the execution of this power of
12-12 attorney is the free and voluntary act of the principal and that
12-13 the principal is of sound mind.
12-14 ______________________
12-15 Principal
12-16 ______________________
12-17 Witness
12-18 Subscribed and sworn to before me by __________________,
12-19 principal, and by ____________, witness, this ______ day of
12-20 ____________, 20____
12-21 (SEAL)
12-22 ____________________________
12-23 (signature of notarial officer)
12-24 ____________________________
12-25 (printed name)
12-26 My commission expires:_________ [This document was acknowledged
12-27 before me on]
13-1 [_______________________]]L(date) by ___________________________
13-2 [(name of principal)]
13-3 [___________________]
13-4 [(signature of notarial officer)]
13-5 [(Seal, if any, of notary) ______________________________]
13-6 [(printed name)]
13-7 [My commission expires:_________]
13-8 THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
13-9 THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
13-10 RESPONSIBILITIES OF AN AGENT AND IS RESPONSIBLE FOR MAINTAINING
13-11 APPROPRIATE RECORDS OF EACH TRANSACTION, INCLUDING AN ACCOUNTING OF
13-12 RECEIPTS AND DISBURSEMENTS, UNTIL THE FOURTH ANNIVERSARY OF THE
13-13 DATE THIS POWER OF ATTORNEY EXPIRES OR IS EXPRESSLY REVOKED BY THE
13-14 PRINCIPAL. AS A FIDUCIARY, AN ATTORNEY-IN-FACT OR AGENT IS HELD TO
13-15 THE HIGHEST STANDARDS OF GOOD FAITH, FAIR DEALING, AND LOYALTY WITH
13-16 RESPECT TO THE PRINCIPAL. FAILURE TO ADHERE TO THESE STANDARDS MAY
13-17 SUBJECT AN ATTORNEY-IN-FACT OR AGENT TO LEGAL ACTION. DEPENDING ON
13-18 THE DEGREE OF MISCONDUCT, AN ATTORNEY-IN-FACT OR AGENT MAY BE
13-19 LIABLE FOR DAMAGES OR MAY BE CHARGED WITH A CRIMINAL OFFENSE.
13-20 (b) A statutory durable power of attorney is legally
13-21 sufficient under this chapter if the wording of the form complies
13-22 substantially with Subsection (a) of this section, the form is
13-23 properly completed, and the signature of the principal is
13-24 acknowledged.
13-25 (c) If a principal initials the line in front of (M) in a
13-26 statutory durable power of attorney, initials in front of another
13-27 power listed in (A) through (L) of the power of attorney do not
14-1 limit the powers granted by (M).
14-2 SECTION 5. This Act takes effect September 1, 2001, and the
14-3 changes in law made by this Act apply only to a durable power of
14-4 attorney or statutory durable power of attorney that is executed on
14-5 or after that date. A durable power of attorney or statutory
14-6 durable power of attorney that is executed before the effective
14-7 date of this Act is governed by the law in effect on the date the
14-8 power of attorney was executed, and that law is continued in effect
14-9 for that purpose.