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 * * * * *