1-1     By:  Thompson (Senate Sponsor - West)                 H.B. No. 1883
 1-2           (In the Senate - Received from the House May 11, 2001;
 1-3     May 11, 2001, read first time and referred to Committee on
 1-4     Jurisprudence; May 11, 2001, reported favorably by the following
 1-5     vote:  Yeas 5, Nays 1; May 11, 2001, sent to printer.)
 1-6                            A BILL TO BE ENTITLED
 1-7                                   AN ACT
 1-8     relating to durable powers of attorney and statutory durable powers
 1-9     of attorney.
1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11           SECTION 1. Section 488, Texas Probate Code, is amended to
1-12     read as follows:
1-13           Sec. 488.  REVOCATION OF DURABLE POWER OF ATTORNEY OR
1-14     STATUTORY DURABLE POWER OF ATTORNEY.  (a)  A principal may revoke a
1-15     statutory durable power of attorney by:
1-16                 (1)  filing notice of the revocation of the statutory
1-17     durable power of attorney in the office of the county clerk of the
1-18     county in which the statutory durable power of attorney was
1-19     recorded; and
1-20                 (2)  giving notice, orally or in writing, of revocation
1-21     filed under Subdivision (1) of this subsection to the attorney in
1-22     fact or agent.
1-23           (b)  On receiving notification of a revocation of a statutory
1-24     durable power of attorney, the attorney in fact or agent must
1-25     return to the principal any of the principal's property
1-26     administered by the attorney in fact or agent in accordance with
1-27     the statutory durable power of attorney.
1-28           (c)  Unless otherwise provided by the durable power of
1-29     attorney, a revocation of a durable power of attorney is not
1-30     effective as to a third party relying on the power of attorney
1-31     until the third party receives actual notice of the revocation.
1-32           SECTION 2.  Section 489, Texas Probate Code, is amended to
1-33     read as follows:
1-34           Sec. 489.  RECORDING DURABLE POWER OF ATTORNEY OR STATUTORY
1-35     DURABLE POWER OF ATTORNEY; PROHIBITED [FOR REAL PROPERTY]
1-36     TRANSACTIONS. (a)  A statutory durable power of attorney and the
1-37     statement of the principal required by Section 489A of this code
1-38     shall be recorded in the county in which the principal resides.
1-39           (b)  A durable power of attorney for a real property
1-40     transaction requiring the execution and delivery of an instrument
1-41     that is to be recorded, including a release, assignment,
1-42     satisfaction, mortgage, security agreement, deed of trust,
1-43     encumbrance, deed of conveyance, oil, gas, or other mineral lease,
1-44     memorandum of a lease, lien, or other claim or right to real
1-45     property, shall also be recorded in the office of the county clerk
1-46     of the county in which the property is located.
1-47           (c)  After execution of a durable power of attorney, the
1-48     attorney in fact or agent may not engage in a real property
1-49     transaction or a tangible personal property transaction pursuant to
1-50     the power of attorney before the 11th day after the date on which
1-51     the power of attorney is recorded.
1-52           SECTION 3.  Chapter XII, Texas Probate Code, is amended by
1-53     adding Sections 489A and 489B to read as follows:
1-54           Sec. 489A.  REQUIRED DISCLOSURE STATEMENT FOR STATUTORY
1-55     DURABLE POWER OF ATTORNEY. (a)  A statutory durable power of
1-56     attorney is not effective unless the principal, on or before
1-57     executing the statutory durable power of attorney, signs a
1-58     statement declaring that the principal has received, read, and
1-59     understood the disclosure statement.
1-60           (b)  A statement in substantially the form of the disclosure
1-61     statement contained in the statutory durable power of attorney in
1-62     Section 490 of this code has the meaning and effect prescribed by
1-63     Subsection (a) of this section.
1-64           Sec. 489B.  ACCOUNTING RECORDS.  (a)  The attorney in fact or
 2-1     agent of a principal empowered to act for the principal with regard
 2-2     to a class of transactions under a durable power of attorney or
 2-3     statutory durable power of attorney shall maintain appropriate
 2-4     records of each transaction, including an accounting of receipts
 2-5     and disbursements.
 2-6           (b)  Within the period prescribed by Subsection (c) of this
 2-7     section, the attorney in fact or agent shall make any transaction
 2-8     records available, on request, to the principal or any guardian or
 2-9     other personal representative of the principal's estate, for
2-10     inspection and review.  If the attorney in fact or agent fails to
2-11     comply with a request made under this subsection, the person making
2-12     the request may file in a court of proper jurisdiction a petition
2-13     for an order to enforce the request.  After notice and hearing, the
2-14     court may order the attorney in fact or agent to make the records
2-15     available to the petitioner for inspection and review.
2-16           (c)  The attorney in fact or agent shall maintain the records
2-17     until at least the fourth anniversary of the date the durable power
2-18     of attorney or statutory durable power of attorney expires or is
2-19     expressly revoked by the principal.
2-20           SECTION 4.  Section 490, Texas Probate Code, is amended to
2-21     read as follows:
2-22           Sec. 490.  Statutory Durable Power of Attorney. (a)  The
2-23     following form is known as a "statutory durable power of attorney."
2-24     A person may use a statutory durable power of attorney to grant an
2-25     attorney in fact or agent powers with respect to a person's
2-26     property and financial matters.  A power of attorney in
2-27     substantially the following form has the meaning and effect
2-28     prescribed by this chapter.  The validity of a power of attorney as
2-29     meeting the requirements of a statutory durable power of attorney
2-30     is not affected by the fact that [one or more of the categories of
2-31     optional powers listed in the form are struck or] the form includes
2-32     specific limitations on or additions to the attorney in fact's or
2-33     agent's powers.
2-34           The following form is not exclusive, and other forms of power
2-35     of attorney may be used.
2-36        STATUTORY DURABLE POWER OF ATTORNEY WITH DISCLOSURE STATEMENT
2-37       A.  DISCLOSURE STATEMENT:  Information Concerning the Statutory
2-38                          Durable Power of Attorney
2-39     THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. You are
2-40     authorizing the person named as your agent (attorney-in-fact) to
2-41     act with full legal power and authority on your behalf with respect
2-42     to your property or financial matters without court approval or
2-43     supervision.  The agent (attorney-in-fact) may take any action
2-44     relating to the powers you have initialed on this document.  YOU
2-45     SHOULD NOT APPOINT A PERSON AS YOUR AGENT (ATTORNEY-IN-FACT) UNLESS
2-46     YOU HAVE COMPLETE TRUST AND CONFIDENCE IN THE PERSON.  If, for
2-47     example, you give your agent (attorney-in-fact) the power to handle
2-48     real property transactions on your behalf, your agent
2-49     (attorney-in-fact) will be able to bind you on all the transactions
2-50     set out in Section 492, Texas Probate Code, including the sale of
2-51     your real property.  In deciding whether you want your agent to
2-52     have a particular power, you should read the corresponding
2-53     statutory provisions (Sections 491-504, Texas Probate Code).  If
2-54     you have any questions about this document or a power granted in
2-55     the document, you should obtain legal advice from an attorney of
2-56     your choice.
2-57     You may wish to designate a successor agent (attorney-in-fact) in
2-58     the event that your agent (attorney-in-fact) is unwilling, unable,
2-59     or ineligible to act as your agent (attorney-in-fact).  A successor
2-60     agent (attorney-in-fact) designated by you will have the same
2-61     authority as the agent (attorney-in-fact) to make property or
2-62     financial matter decisions for you.
2-63     EVEN AFTER YOU HAVE SIGNED THIS DOCUMENT, YOU HAVE THE RIGHT TO
2-64     MAKE PROPERTY OR FINANCIAL MATTER DECISIONS FOR YOURSELF SO LONG AS
2-65     YOU ARE ABLE TO DO SO.
2-66     YOU MAY REVOKE THIS POWER OF ATTORNEY AT ANY TIME IF YOU WISH TO DO
2-67     SO. To revoke a statutory durable power of attorney, you must file
2-68     a notice of revocation with the county clerk in the county in which
2-69     the statutory durable power of attorney is recorded.  You must also
 3-1     inform the agent (attorney-in-fact) orally or in writing that you
 3-2     are terminating the person's authority under the statutory durable
 3-3     power of attorney.  If you are aware of a third party who has
 3-4     transacted business with the agent (attorney-in-fact) acting under
 3-5     the statutory durable power of attorney, you should send the third
 3-6     party notice that the agent (attorney-in-fact) no longer has
 3-7     authority to act on your behalf under the statutory durable power
 3-8     of attorney.
 3-9     IF YOU HAVE A QUESTION ABOUT HOW YOUR AGENT (ATTORNEY-IN-FACT) IS
3-10     HANDLING YOUR PROPERTY OR FINANCIAL MATTERS, YOU ARE ENTITLED TO
3-11     RECEIVE AN ACCOUNTING FROM THE AGENT (ATTORNEY-IN-FACT).  Your
3-12     right to an accounting is described in this document.  You also are
3-13     entitled to have any property administered by your agent
3-14     (attorney-in-fact) returned to you when you revoke the statutory
3-15     durable power of attorney or when your agent (attorney-in-fact)
3-16     resigns.
3-17     THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL OR HEALTH
3-18     CARE DECISIONS FOR YOU. You may authorize an agent
3-19     (attorney-in-fact) to make those types of decisions on your behalf
3-20     under a medical power of attorney.
3-21     Sign below to acknowledge your receipt of this disclosure statement
3-22     before you sign the statutory durable power of attorney to affirm
3-23     that YOU HAVE BEEN GIVEN THE OPPORTUNITY TO:
3-24           (1)  READ THIS DISCLOSURE STATEMENT AND THE ATTACHED
3-25     STATUTORY POWERS; and
3-26           (2)  ASK ABOUT THE SCOPE OF ANY POWERS THAT YOU DO NOT FULLY
3-27     UNDERSTAND.
3-28     _________________________                     Date:________________
3-29     Principal's Signature
3-30                     B.  APPOINTMENT; GRANTING OF POWERS
3-31     [NOTICE:  THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND
3-32     SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT,
3-33     CHAPTER XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT
3-34     THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
3-35     AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS
3-36     FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO
3-37     DO SO.]
3-38           I, __________ (insert your name and address), appoint
3-39     __________ (insert the name and address of the person appointed) as
3-40     my agent (attorney-in-fact) to act for me in any lawful way with
3-41     respect to all of the following powers that I have initialed
3-42     [except for a power that I have crossed out below].
3-43           TO GRANT ALL OF THE FOLLOWING POWERS, EXCLUDING REAL PROPERTY
3-44     TRANSACTIONS, INITIAL THE LINE IN FRONT OF (M) AND IGNORE THE LINES
3-45     IN FRONT OF THE OTHER POWERS LISTED IN (A) THROUGH (L).
3-46           TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
3-47     POWER.
3-48           TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
3-49     [YOU MUST CROSS OUT EACH] POWER [WITHHELD].  YOU MAY, BUT DO NOT
3-50     NEED TO, CROSS OUT EACH POWER WITHHELD.
3-51     ___(A)  [Real property transactions;] Tangible personal property
3-52     transactions;
3-53     ___(B)  Stock and bond transactions;
3-54     ___(C)  Commodity and option transactions;
3-55     ___(D)  Banking and other financial institution transactions;
3-56     ___(E)  Business operating transactions;
3-57     ___(F)  Insurance and annuity transactions;
3-58     ___(G)  Estate, trust, and other beneficiary transactions;
3-59     ___(H)  Claims and litigation;
3-60     ___(I)  Personal and family maintenance;
3-61     ___(J)  Benefits from social security, Medicare, Medicaid, or other
3-62     governmental programs or civil or military service;
3-63     ___(K)  Retirement plan transactions;
3-64     ___(L)  Tax matters;
3-65     ___(M)  ALL OF THE POWERS LISTED IN (A) THROUGH (L).  YOU DO NOT
3-66     HAVE TO INITIAL THE LINES IN FRONT OF ANY OTHER POWER THAT DOES NOT
3-67     INVOLVE REAL PROPERTY TRANSACTIONS IF YOU INITIAL LINE (M).
3-68           TO GRANT A POWER INVOLVING REAL PROPERTY TRANSACTIONS,
3-69     INITIAL THE LINE IN FRONT OF ONE OF THE FOLLOWING POWERS.  TO GRANT
 4-1     A POWER INVOLVING YOUR HOMESTEAD, INITIAL THE LINE IN FRONT OF (N).
 4-2     ___(N)  All real property transactions, including transactions
 4-3     involving your homestead;
 4-4     ___(O)  Any real property transactions under $50,000, excluding
 4-5     your homestead;
 4-6     ___(P)  All real property transactions, excluding your homestead.
 4-7           [IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL
 4-8     BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY
 4-9     AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO
4-10     PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I
4-11     WERE PERSONALLY PRESENT.]
4-12                            SPECIAL INSTRUCTIONS:
4-13           Special instructions applicable to gifts (initial in front of
4-14     the following sentence to have it apply):
4-15           I grant my agent (attorney in fact) the power to apply my
4-16     property to make gifts, except that the amount of a gift to an
4-17     individual may not exceed the amount of annual exclusions allowed
4-18     from the federal gift tax for the calendar year of the gift.
4-19           ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
4-20     LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT
4-21     (ATTORNEY-IN-FACT).
4-22     __________________________________________________________________
4-23     __________________________________________________________________
4-24     __________________________________________________________________
4-25     __________________________________________________________________
4-26     __________________________________________________________________
4-27     __________________________________________________________________
4-28     __________________________________________________________________
4-29     __________________________________________________________________
4-30     __________________________________________________________________
4-31     __________________________________________________________________
4-32           UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
4-33     EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
4-34           CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
4-35     ALTERNATIVE NOT CHOSEN:
4-36           (A)  This power of attorney is not affected by my subsequent
4-37     disability or incapacity.
4-38           (B)  This power of attorney becomes effective upon my
4-39     disability or incapacity.
4-40           YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
4-41     IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
4-42           IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED
4-43     THAT YOU CHOSE ALTERNATIVE (A).
4-44           If Alternative (B) is chosen and a definition of my
4-45     disability or incapacity is not contained in this power of
4-46     attorney, I shall be considered disabled or incapacitated for
4-47     purposes of this power of attorney if a physician certifies in
4-48     writing at a date later than the date this power of attorney is
4-49     executed that, based on the physician's medical examination of me,
4-50     I am mentally incapable of managing my financial affairs.  I
4-51     authorize the physician who examines me for this purpose to
4-52     disclose my physical or mental condition to another person for
4-53     purposes of this power of attorney.  A third party who accepts this
4-54     power of attorney is fully protected from any action taken under
4-55     this power of attorney that is based on the determination made by a
4-56     physician of my disability or incapacity.
4-57           I agree that any third party who receives a copy of this
4-58     document may act under it.  Revocation of the durable power of
4-59     attorney is not effective as to a third party until the third party
4-60     receives actual notice of the revocation.  I agree to indemnify the
4-61     third party for any claims that arise against the third party
4-62     because of reliance on this power of attorney.
4-63           I shall record this power of attorney and the disclosure
4-64     statement in _______ County.  I may revoke this power of attorney
4-65     by recording a notice of revocation in the office of the county
4-66     clerk in the same county in which the power of attorney is recorded
4-67     and by giving my agent (attorney-in-fact) written or oral notice of
4-68     the revocation.
4-69           If any agent named by me dies, becomes legally disabled,
 5-1     resigns, or refuses to act, I name the following (each to act alone
 5-2     and successively, in the order named)  as successor(s)  to that
 5-3     agent:  __________.
 5-4           Signed this ______ day of __________, 20 [19]___
 5-5                                         ______________________________
 5-6                                         (your signature)
 5-7                                         ______________________________
 5-8                                         (signature of witness)
 5-9           YOU MAY REQUEST YOUR AGENT (ATTORNEY-IN-FACT) OR SUCCESSOR
5-10     AGENT (ATTORNEY-IN-FACT) TO PROVIDE A SAMPLE SIGNATURE ON THE LINE
5-11     BELOW.  IF YOUR AGENT (ATTORNEY-IN-FACT) OR SUCCESSOR AGENT
5-12     (ATTORNEY-IN-FACT) PROVIDES A SAMPLE SIGNATURE, YOU MUST SIGN THE
5-13     CERTIFICATION TO THE RIGHT OF THE AGENT'S (ATTORNEY-IN-FACT'S)
5-14     SIGNATURE.
5-15     Sample signature of agent            I certify that the signature
5-16     or successor agent                   to the left of my signature is
5-17                                          that of my agent or successor
5-18                                          agent
5-19     _________________________            _________________________
5-20     (agent)                              (principal)
5-21     _________________________            _________________________
5-22     (successor agent)                    (principal)
5-23     _________________________            _________________________
5-24     (successor agent)                    (principal)
5-25           THIS POWER OF ATTORNEY IS NOT EFFECTIVE UNLESS IT IS
5-26     NOTARIZED AND SIGNED BY AT LEAST ONE WITNESS WHO IS NOT THE
5-27     PRINCIPAL, THE AGENT (ATTORNEY-IN-FACT), SUCCESSOR AGENT
5-28     (ATTORNEY-IN-FACT), OR NOTARY AND THE DISCLOSURE STATEMENT IS
5-29     SIGNED BY THE PRINCIPAL.
5-30     State of _______________________
5-31     County of ______________________
5-32     Before me, the undersigned authority, on this day personally
5-33     appeared __________________ (insert name of principal) and
5-34     __________________ (insert name of witness), known to me to be the
5-35     principal and witness, respectively, of this power of attorney.
5-36     The principal of this power of attorney declared to me that the
5-37     execution of this power of attorney is the free and voluntary act
5-38     of the principal and that the principal is of sound mind.  The
5-39     undersigned witness stated to me that the principal of this power
5-40     of attorney declared to me that the execution of this power of
5-41     attorney is the free and voluntary act of the principal and that
5-42     the principal is of sound mind.
5-43                                    ______________________
5-44                                    Principal
5-45                                    ______________________
5-46                                    Witness
5-47           Subscribed and sworn to before me by __________________,
5-48     principal, and by ____________, witness, this ______ day of
5-49     ____________, 20____
5-50     (SEAL)
5-51     ____________________________
5-52     (signature of notarial officer)
5-53     ____________________________
5-54     (printed name)
5-55     My commission expires:_________ [This document was acknowledged
5-56     before me on]
5-57     [_______________________]]L(date) by ___________________________  
5-58     [(name of principal)]
5-59     [___________________]
5-60     [(signature of notarial officer)]
5-61     [(Seal, if any, of notary) ______________________________]
5-62     [(printed name)]
5-63     [My commission expires:_________]
5-64           THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
5-65     THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
5-66     RESPONSIBILITIES OF AN AGENT AND IS RESPONSIBLE FOR MAINTAINING
5-67     APPROPRIATE RECORDS OF EACH TRANSACTION, INCLUDING AN ACCOUNTING OF
5-68     RECEIPTS AND DISBURSEMENTS, UNTIL THE FOURTH ANNIVERSARY OF THE
5-69     DATE THIS POWER OF ATTORNEY EXPIRES OR IS EXPRESSLY REVOKED BY THE
 6-1     PRINCIPAL.  AS A FIDUCIARY, AN ATTORNEY-IN-FACT OR AGENT IS HELD TO
 6-2     THE HIGHEST STANDARDS OF GOOD FAITH, FAIR DEALING, AND LOYALTY WITH
 6-3     RESPECT TO THE PRINCIPAL.  FAILURE TO ADHERE TO THESE STANDARDS MAY
 6-4     SUBJECT AN ATTORNEY-IN-FACT OR AGENT TO LEGAL ACTION.  DEPENDING ON
 6-5     THE DEGREE OF MISCONDUCT, AN ATTORNEY-IN-FACT OR AGENT MAY BE
 6-6     LIABLE FOR DAMAGES OR MAY BE CHARGED WITH A CRIMINAL OFFENSE.
 6-7           (b)  A statutory durable power of attorney is legally
 6-8     sufficient under this chapter if the wording of the form complies
 6-9     substantially with Subsection (a)  of this section, the form is
6-10     properly completed, and the signature of the principal is
6-11     acknowledged.
6-12           (c)  If a principal initials the line in front of (M) in a
6-13     statutory durable power of attorney, initials in front of another
6-14     power listed in (A) through (L) of the power of attorney do not
6-15     limit the powers granted by (M).
6-16           SECTION 5.  This Act takes effect September 1, 2001, and the
6-17     changes in law made by this Act apply only to a durable power of
6-18     attorney or statutory durable power of attorney that is executed on
6-19     or after that date.  A durable power of attorney or statutory
6-20     durable power of attorney that is executed before the effective
6-21     date of this Act is governed by the law in effect on the date the
6-22     power of attorney was executed, and that law is continued in effect
6-23     for that purpose.
6-24                                  * * * * *