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A BILL TO BE ENTITLED
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AN ACT
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relating to the acknowledgment of an agent's or attorney in fact's |
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duties under a durable power of attorney. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter XII, Texas Probate Code, is amended by |
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adding Section 489C to read as follows: |
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Sec. 489C. NOTICE REGARDING FIDUCIARY AND OTHER LEGAL |
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RESPONSIBILITIES OF ATTORNEY IN FACT OR AGENT. (a) An attorney in |
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fact or agent at the time authority conferred by a durable power of |
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attorney is exercised by the attorney in fact or agent for a |
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transaction of $1,000 or more must provide to the financial |
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institution or other person to whom the durable power of attorney is |
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provided the following written notice, in substantially the |
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following form: |
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"NOTICE |
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THE ATTORNEY IN FACT OR AGENT UNDERSTANDS THAT, BY ACCEPTING |
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THE APPOINTMENT, THE ATTORNEY IN FACT OR AGENT ASSUMES THE |
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FOLLOWING FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT: |
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I, ________ (insert your name and address), accept the |
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following responsibilities and obligations as an agent (attorney in |
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fact) of ________ (insert the name and address of the principal): |
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I am a fiduciary and have a duty to inform and to account for |
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actions taken under the power of attorney. |
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I shall timely inform the principal of all actions taken |
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under the power of attorney. Failure to inform timely, as to third |
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parties, does not invalidate any action taken by me as the agent or |
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attorney in fact. |
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I shall maintain records of each action taken or decision |
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made by me as the agent or attorney in fact. |
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The principal may demand an accounting of my actions as the |
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agent or attorney in fact. Unless otherwise directed by the |
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principal, the accounting must include: |
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(1) a description of the property belonging to the |
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principal that has come to the agent's or attorney in fact's |
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knowledge or into the agent's or attorney in fact's possession; |
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(2) a description of all actions taken or decisions |
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made by me as the agent or attorney in fact; |
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(3) a complete account of receipts, disbursements, and |
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other actions as the agent or attorney in fact, including their |
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source and nature, with receipts of principal and income shown |
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separately; |
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(4) a listing of all property over which I, as the |
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agent or attorney in fact, have exercised control, with an adequate |
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description of each asset and its current value if known to me as |
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the agent or attorney in fact; |
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(5) a statement of the cash balance on hand and the |
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name and location of the depository where the balance is kept; |
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(6) a statement of all known liabilities; and |
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(7) other information and facts known to me as the |
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agent or attorney in fact as may be necessary to a full and definite |
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understanding of the exact condition of the property belonging to |
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the principal. |
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Unless directed otherwise by the principal, I shall provide |
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to the principal all documentation regarding the principal's |
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property. |
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I shall maintain all records until delivered to the |
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principal, released by the principal, or discharged by a court. |
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If I fail or refuse to inform the principal, provide |
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documentation, or deliver the accounting within 60 days (or a |
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longer or shorter time that the principal demands or a court may |
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order), the principal may file suit to compel me to deliver the |
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accounting, to deliver the assets, or to terminate the power of |
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attorney. |
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Wherever in Chapter XII, Texas Probate Code, a principal is |
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given an authority to act, that authority includes not only the |
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principal but also any person designated by the principal, a |
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guardian of the estate of the principal, or other personal |
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representative of the principal. |
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The rights set out in Chapter XII, Texas Probate Code, are |
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cumulative of any other rights or remedies the principal may have at |
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common law or other applicable statutes and not in derogation of |
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those rights. |
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Signed this __ day of ____, 20__ |
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______________________________ |
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(signature of agent or attorney in |
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fact) |
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State of _________________ |
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County of ________________ |
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This document was acknowledged before me on ________________ (date) |
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by ____________________________ and _____________________________ |
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(name of principal) (name of agent (or attorney in fact)) |
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______________________________ |
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(signature of notarial officer) |
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(Seal, if any, of notary) ________________________________________ |
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(printed name) |
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My commission expires: ____________ ". |
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(b) A written notice complies with the requirements of |
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Subsection (a) of this section if: |
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(1) the wording of the notice complies substantially |
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with the wording of the form prescribed by Subsection (a) of this |
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section; |
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(2) the notice is properly completed and signed by the |
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attorney in fact or agent; and |
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(3) the signature of the attorney in fact or agent is |
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acknowledged. |
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SECTION 2. This Act takes effect September 1, 2009. |