78R2743 MTB-D
By: Thompson H.B. No. 710
A BILL TO BE ENTITLED
AN ACT
relating to durable powers of attorney and statutory durable powers
of attorney.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 482, Texas Probate Code, is amended to
read as follows:
Sec. 482. DEFINITION. A "durable power of attorney" means
a written instrument that:
(1) designates another person as attorney in fact or
agent;
(2) is signed by an adult principal;
(3) contains the words "This power of attorney is not
affected by subsequent disability or incapacity of the principal,"
or "This power of attorney becomes effective on the disability or
incapacity of the principal," or similar words showing the
principal's intent that the authority conferred on the attorney in
fact or agent shall be exercised notwithstanding the principal's
subsequent disability or incapacity; [and]
(4) is acknowledged by the principal before an officer
authorized to take acknowledgments to deeds of conveyance and to
administer oaths under the laws of this state or any other state;
and
(5) is attested to in writing by two credible
witnesses 14 years of age or older who are not designated as
attorney in fact or agent.
SECTION 2. Chapter XII, Texas Probate Code, is amended by
adding Sections 489C and 489D to read as follows:
Sec. 489C. PROHIBITION ON SELF-DEALING. The attorney in
fact or agent may not engage in self-dealing in undertaking an
action or exercising any other power granted under the durable
power of attorney.
Sec. 489D. STANDARD FOR MANAGEMENT AND INVESTMENT. In
acquiring, investing, reinvesting, exchanging, retaining, selling,
supervising, and managing property under a durable power of
attorney, the attorney in fact or agent is subject to the same
standard as a trustee under the Texas Trust Code as provided by
Subtitle B, Title 9, Property Code.
SECTION 3. Section 490(a), Texas Probate Code, is amended
to read as follows:
(a) The following form is known as a "statutory durable
power of attorney." A person may use a statutory durable power of
attorney to grant an attorney in fact or agent powers with respect
to a person's property and financial matters. A power of attorney
in substantially the following form has the meaning and effect
prescribed by this chapter. The validity of a power of attorney as
meeting the requirements of a statutory durable power of attorney
is not affected by the fact that one or more of the categories of
optional powers listed in the form are not initialed by the
principal [struck] or the form includes specific limitations on or
additions to the attorney in fact's or agent's powers.
The following form is not exclusive, and other forms of power
of attorney may be used.
STATUTORY DURABLE POWER OF ATTORNEY
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING.
THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, CHAPTER
XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE
POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS
FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO
DO SO.
I, __________ (insert your name and address), appoint
__________ (insert the name and address of the person appointed) as
my agent (attorney-in-fact) to act for me in any lawful way as
provided by this document with respect to all of the following
powers that I have initialed [except for a power that I have crossed
out] below.
TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
POWER.
TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
[YOU MUST CROSS OUT EACH] POWER [WITHHELD].
___(A) Real property transactions, excluding transactions
involving your homestead;
___(B) Tangible personal property transactions;
___(C) Stock and bond transactions;
___(D) Commodity and option transactions;
___(E) Banking and other financial institution transactions;
___(F) Business operating transactions;
___(G) Insurance and annuity transactions;
___(H) Estate, trust, and other beneficiary transactions;
___(I) Claims and litigation;
___(J) Personal and family maintenance;
___(K) Benefits from social security, Medicare, Medicaid, or
other governmental programs or civil or military service;
___(L) Retirement plan transactions;
___(M) Transactions involving your homestead;
___(N) Tax matters.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY INITIALING THE
LINE IN FRONT OF THE ALTERNATIVE CHOSEN:
___(O) Each power listed in (A) through (N) above that is intialed
by me grants my agent (attorney in fact) the authority to engage in
a transaction of $50,000 or less with respect to that power.
___(P) Each power listed in (A) through (N) above that is intialed
by me grants my agent (attorney in fact) the authority to engage in
a transaction with respect to that power that is not limited by a
specified dollar amount.
IF NEITHER (O) NOR (P) IS INITIALED BY YOU, IT WILL BE ASSUMED
THAT YOU CHOSE ALTERNATIVE (O).
IF EACH [NO] POWER LISTED IN (A) THROUGH (N) ABOVE IS
INITIALED BY ME AND I CHOOSE ALTERNATIVE (P) ABOVE [CROSSED OUT],
THIS DOCUMENT SHALL BE CONSTRUED AND INTERPRETED AS A GENERAL POWER
OF ATTORNEY AND MY AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND
AUTHORITY TO PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR
UNDERTAKE IF I WERE PERSONALLY PRESENT.
SPECIAL INSTRUCTIONS:
Special instructions applicable to gifts (initial in front of
the following sentence to have it apply):
___I grant my agent (attorney in fact) the power to apply my
property to make gifts, except that the amount of a gift to an
individual may not exceed the amount of annual exclusions allowed
from the federal gift tax for the calendar year of the gift.
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
ALTERNATIVE NOT CHOSEN:
(A) This power of attorney is not affected by my subsequent
disability or incapacity.
(B) This power of attorney becomes effective upon my
disability or incapacity.
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
YOU CHOSE ALTERNATIVE (A).
If Alternative (B) is chosen and a definition of my
disability or incapacity is not contained in this power of
attorney, I shall be considered disabled or incapacitated for
purposes of this power of attorney if a physician certifies in
writing at a date later than the date this power of attorney is
executed that, based on the physician's medical examination of me,
I am mentally incapable of managing my financial affairs. I
authorize the physician who examines me for this purpose to
disclose my physical or mental condition to another person for
purposes of this power of attorney. A third party who accepts this
power of attorney is fully protected from any action taken under
this power of attorney that is based on the determination made by a
physician of my disability or incapacity.
I agree that any third party who receives a copy of this
document may act under it. Revocation of the durable power of
attorney is not effective as to a third party until the third party
receives actual notice of the revocation. I agree to indemnify the
third party for any claims that arise against the third party
because of reliance on this power of attorney.
If any agent named by me dies, becomes legally disabled,
resigns, or refuses to act, I name the following (each to act alone
and successively, in the order named) as successor(s) to that
agent: __________.
I authorize the following (name one or more individuals) to
demand an accounting by my agent (attorney in fact):
__________________.
Signed this ______ day of __________, _____[19____]
________________________________
(your signature)
________________________________
(signature of witness)
________________________________
(signature of witness)
THIS POWER OF ATTORNEY IS NOT EFFECTIVE UNLESS IT IS SIGNED BY
TWO CREDIBLE WITNESSES 14 YEARS OF AGE OR OLDER WHO ARE NOT
DESIGNATED AS MY AGENT (ATTORNEY IN FACT).
State of _______________________
County of ______________________
This document was acknowledged before me on
________________________(date) by _____________________________
(name of principal)
________________________________
(signature of notarial officer)
(Seal, if any, of notary)
___________________________________
(printed name)
My commission expires:__________
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
RESPONSIBILITIES OF AN AGENT AND IS SUBJECT TO THE SAME STANDARD IN
MANAGING MY PROPERTY AND AFFAIRS AS IS PROVIDED FOR A TRUSTEE UNDER
THE TEXAS TRUST CODE.
SECTION 4. This Act takes effect September 1, 2003, and the
changes in law made by this Act apply to a durable power of attorney
or statutory durable power of attorney that is executed on or after
that date. A durable power of attorney or statutory durable power of
attorney that is executed before the effective date of this Act is
governed by the law in effect on the date the power of attorney was
executed, and that law is continued in effect for that purpose.