81R8671 CLG-F

By: Guillen H.B. No. 2331

A BILL TO BE ENTITLED

AN ACT

relating to the requirements of a durable power of attorney and the acknowledgment of an agent's or attorney in fact's duties under a durable power 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 and designated attorney in fact or agent;

(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 and designated attorney in fact or agent 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.

SECTION 2. Section 490, Texas Probate Code, is amended to read as follows:

Sec. 490. STATUTORY DURABLE POWER OF ATTORNEY. (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 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 with respect to all of the following powers except for a power that I have crossed out below.

TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER WITHHELD.

Real property transactions;

Tangible personal property transactions;

Stock and bond transactions;

Commodity and option transactions;

Banking and other financial institution transactions;

Business operating transactions;

Insurance and annuity transactions;

Estate, trust, and other beneficiary transactions;

Claims and litigation;

Personal and family maintenance;

Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service;

Retirement plan transactions;

Tax matters.

IF NO POWER LISTED ABOVE IS 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. _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ _______________________________________________________________ _______________________________________________________________

THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING THE APPOINTMENT, ASSUMES THE FOLLOWING FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT.

I, ________ (insert your name and address), accept the following responsibilities and obligations as an agent (attorney in fact) of ________ (insert the name and address of the principal):

I am a fiduciary and have a duty to inform and to account for actions taken pursuant to the power of attorney.

I shall timely inform the principal of all actions taken pursuant to the power of attorney. Failure to inform timely, as to third parties, does not invalidate any action taken by me as the agent or attorney in fact.

I shall maintain records of each action taken or decision made by me as the agent or attorney in fact.

The principal may demand an accounting of my actions as the agent or attorney in fact. Unless otherwise directed by the principal, the accounting shall include:

(1) the property belonging to the principal that has come to the agent's or attorney in fact's knowledge or into the agent's or attorney in fact's possession;

(2) all actions taken or decisions made by me as the agent or attorney in fact;

(3) a complete account of receipts, disbursements, and other actions as the agent or attorney in fact, including their source and nature, with receipts of principal and income shown separately;

(4) a listing of all property over which I, as the agent or attorney in fact, have exercised control, with an adequate description of each asset and its current value if known to me as the agent or attorney in fact;

(5) the cash balance on hand and the name and location of the depository where the balance is kept;

(6) all known liabilities; and

(7) such other information and facts known to me as the agent or attorney in fact as may be necessary to a full and definite understanding of the exact condition of the property belonging to the principal.

Unless directed otherwise by the principal, I shall also provide to the principal all documentation regarding the principal's property.

I shall maintain all records until delivered to the principal, released by the principal, or discharged by a court.

If I fail or refuse to inform the principal, provide documentation, or deliver the accounting within 60 days (or such longer or shorter time that the principal demands or a court may order), the principal may file suit to compel me to deliver the accounting, to deliver the assets, or to terminate the power of attorney.

Wherever in this chapter a principal is given an authority to act, that shall include not only the principal but also any person designated by the principal, a guardian of the estate of the principal, or other personal representative of the principal.

The rights set out in this section and chapter are cumulative of any other rights or remedies the principal may have at common law or other applicable statutes and not in derogation of those rights.

Signed this __ day of ____, 20__

______________________________ (signature of agent or attorney in

fact)

UNLESS YOU AS PRINCIPAL 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: ________.]

Signed this ____ day of ______, 20__ [19__]

_________________________

([your] signature of

principal) State of _________________ County of ________________ This document was acknowledged before me on _______________ (date) by ___________________and _________________________ (name of principal)(name of agent (or attorney in

fact)) ______________________________ (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.]

(b) A statutory durable power of attorney is legally sufficient under this chapter if the wording of the form complies substantially with Subsection (a) of this section, the form is properly completed, and the signatures [signature] of the principal and agent or attorney in fact are [is] acknowledged.

SECTION 3. Section 491, Texas Probate Code, is amended to read as follows:

Sec. 491. CONSTRUCTION OF POWERS GENERALLY. The principal and attorney in fact or agent, by executing a statutory durable power of attorney that confers authority with respect to any class of transactions, empowers the attorney in fact or agent for that class of transactions to:

(1) demand, receive, and obtain by litigation, action, or otherwise any money or other thing of value to which the principal is, may become, or may claim to be entitled;

(2) conserve, invest, disburse, or use any money or other thing of value received on behalf of the principal for the purposes intended;

(3) contract in any manner with any person, on terms agreeable to the attorney in fact or agent, to accomplish a purpose of a transaction and perform, rescind, reform, release, or modify the contract or another contract made by or on behalf of the principal;

(4) execute, acknowledge, seal, and deliver a deed, revocation, mortgage, lease, notice, check, release, or other instrument the agent considers desirable to accomplish a purpose of a transaction;

(5) prosecute, defend, submit to arbitration, settle, and propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in an action or litigation relating to the claim;

(6) seek on the principal's behalf the assistance of a court to carry out an act authorized by the power of attorney;

(7) engage, compensate, and discharge an attorney, accountant, expert witness, or other assistant;

(8) keep appropriate records of each transaction, including an accounting of receipts and disbursements;

(9) prepare, execute, and file a record, report, or other document the attorney in fact or agent considers necessary or desirable to safeguard or promote the principal's interest under a statute or governmental regulation;

(10) reimburse the attorney in fact or agent for expenditures made in exercising the powers granted by the durable power of attorney; and

(11) in general, do any other lawful act that the principal may do with respect to a transaction.

SECTION 4. This Act applies only to a durable power of attorney that is executed on or after the effective date of this Act. A 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 the former law is continued in effect for that purpose.

SECTION 5. This Act takes effect September 1, 2009.