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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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ARTICLE 1. DURABLE POWERS OF
ATTORNEY
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ARTICLE 1. DURABLE POWERS OF
ATTORNEY
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No
equivalent provision.
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SECTION 1.01. Subchapter A,
Chapter 751, Estates Code, is amended by adding Section 751.0015 to read as
follows:
Sec. 751.0015.
APPLICABILITY. This subtitle applies to all durable powers of attorney
except:
(1) a power of attorney
to the extent it is coupled with an interest in the subject of that power,
including a power of attorney given to or for the benefit of a creditor in
connection with a credit transaction;
(2) a proxy or other
delegation to exercise voting rights or management rights with respect to
an entity; or
(3) a power of attorney
created on a form prescribed by a government or governmental subdivision,
agency, or instrumentality for a governmental purpose.
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SECTION 1.01. Section
751.002, Estates Code, is amended to read as follows:
Sec. 751.002. DEFINITIONS
[DEFINITION] OF DURABLE POWER OF ATTORNEY AND AGENT. (a)
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 or in the adult principal's conscious presence by another
individual directed by the principal to sign the principal's name on the
durable power of attorney;
(3) contains:
(A) the words:
(i) "This power of
attorney is not affected by subsequent disability or incapacity of the
principal"; or
(ii) "This power of
attorney becomes effective on the disability or incapacity of the
principal"; or
(B) words similar to those
of Paragraph (A) that show 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 under the laws of this state or
another state to:
(A) take acknowledgments to
deeds of conveyance; and
(B) administer oaths.
(b) If the law of the
jurisdiction that determines the meaning and effect of a power of attorney
under Section 751.009 provides that the authority conferred on the agent is
exercisable notwithstanding the principal's subsequent disability or
incapacity, the power of attorney is considered a durable power of attorney
under this subtitle.
(c) In this subtitle, the
term "agent" includes an "attorney in fact."
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SECTION 1.02. Section
751.002, Estates Code, is amended to read as follows:
Sec. 751.002. DEFINITIONS
[DEFINITION] OF DURABLE POWER OF ATTORNEY AND AGENT. (a)
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 or in the adult principal's conscious presence by another
individual directed by the principal to sign the principal's name on the
durable power of attorney;
(3) contains:
(A) the words:
(i) "This power of
attorney is not affected by subsequent disability or incapacity of the
principal"; or
(ii) "This power of
attorney becomes effective on the disability or incapacity of the
principal"; or
(B) words similar to those
of Paragraph (A) that show 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 under the laws of this state or
another state to:
(A) take acknowledgments to
deeds of conveyance; and
(B) administer oaths.
(b) If the law of the
jurisdiction that determines the meaning and effect of a power of attorney
under Section 751.009 provides that the authority conferred on the agent is
exercisable notwithstanding the principal's subsequent disability or
incapacity, the power of attorney is considered a durable power of attorney
under this subtitle.
(c) In this subtitle, the
term "agent" includes an "attorney in fact."
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SECTION 1.02. Subchapter A,
Chapter 751, Estates Code, is amended by adding Sections 751.007, 751.008,
751.009, 751.010, 751.011, and 751.012 to read as follows:
Sec. 751.007. PRESUMPTION
OF GENUINE SIGNATURE.
Sec. 751.008. VALIDITY OF
POWER OF ATTORNEY. (a) A durable power of attorney executed in this state
is valid if the execution of the instrument complies with Section 751.002.
(b) A durable power of
attorney executed in a jurisdiction other than this state is valid in this
state if, when executed, the execution of the durable power of attorney
complied with:
(1) the law of the
jurisdiction that determines the meaning and effect of the durable power of
attorney as provided by Section 751.009; or
(2) the requirements for
a military power of attorney as provided by 10 U.S.C. Section 1044b.
(c) Except as otherwise
provided by statute other than this subtitle, a photocopy or electronically
transmitted copy of an original durable power of attorney has the same
effect as the original instrument.
Sec. 751.009. MEANING AND
EFFECT OF DURABLE POWER OF ATTORNEY. The meaning and effect of a durable
power of attorney is determined by the law of the jurisdiction indicated in
the durable power of attorney and, in the absence of an indication of
jurisdiction, by
the law of the
jurisdiction in which the durable power of attorney was executed.
Sec. 751.010. JUDICIAL
RELIEF. (a) The following may bring an action in which a court is
requested to construe a durable power of attorney or review the agent's
conduct and grant appropriate relief:
(1) the principal or the
agent;
(2) a guardian, conservator,
or other fiduciary acting for the principal;
(3) a person named as a
beneficiary to receive any property, benefit, or contractual right on the
principal's death;
(4) a governmental agency
having regulatory authority to protect the welfare of the principal; and
(5) a person who
demonstrates to the court sufficient interest in the principal's welfare or
estate.
(b) A person who is
requested to accept a durable power of attorney may bring an action in a
court to construe the durable power of attorney.
(c) On motion by the
principal, the court shall dismiss an action filed under this section
unless the court finds that the principal lacks capacity to revoke the
agent's authority or the durable power of attorney.
No
equivalent provision.
Sec. 751.011. CO-AGENTS
AND SUCCESSOR AGENTS. (a) A principal may designate two or more persons to
act as co-agents. Unless the durable power of attorney otherwise provides,
each co-agent may exercise authority
independently of the other co-agent.
(b) A principal may
designate one or more successor agents to act if an agent resigns, dies,
becomes incapacitated, is not qualified to serve, or declines to serve.
A principal may grant authority to designate one or more successor agents
to an agent or other person designated by name, office, or function. Unless
the durable power of attorney otherwise provides, a successor agent:
(1) has the same
authority as the authority granted to the predecessor agent; and
(2) is not considered an
agent under this subtitle and may not act until all predecessor agents have
resigned, died, become incapacitated, are no longer qualified to serve, or
have declined to serve.
No
equivalent provision.
(c) Except as otherwise
provided by Subsection (d) or the durable power of attorney, an agent who
does not participate in or conceal a breach of fiduciary duty committed by
another agent, including a predecessor agent, is not liable for the actions
of the other agent.
(d) An agent who has
actual knowledge of a breach or imminent breach of fiduciary duty by
another agent shall notify the principal and, if the principal is
incapacitated, shall take any action reasonably appropriate under the
circumstances to safeguard the principal's best interest. An agent who
fails to notify the principal or take action as required by this subsection
is liable for the reasonably foreseeable damages that could have been
avoided if the agent had notified the principal or taken the action.
Sec. 751.012.
REIMBURSEMENT AND COMPENSATION OF AGENT. Unless the durable power of
attorney otherwise provides, an agent is entitled to reimbursement of
reasonable expenses incurred on the principal's behalf and to compensation
that is reasonable under the circumstances.
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SECTION 1.03. Subchapter A,
Chapter 751, Estates Code, is amended by adding Sections 751.007, 751.008,
751.009, 751.010, 751.011, 751.012, and 751.013 to read as follows:
Sec. 751.007. PRESUMPTION
OF GENUINE SIGNATURE.
Sec. 751.008. VALIDITY OF
POWER OF ATTORNEY. (a) A durable power of attorney executed in this state
is valid if the execution of the instrument complies with Section 751.002.
(b) A durable power of
attorney executed in a jurisdiction other than this state is valid in this
state if, when executed, the execution of the durable power of attorney
complied with:
(1) the law of the
jurisdiction that determines the meaning and effect of the durable power of
attorney as provided by Section 751.009; or
(2) the requirements for
a military power of attorney as provided by 10 U.S.C. Section 1044b.
(c) Except as otherwise
provided by statute other than this subtitle, a photocopy or electronically
transmitted copy of an original durable power of attorney has the same
effect as the original instrument and may
be relied on by a person who is requested to accept the durable power of
attorney, without liability, to the same extent as the original instrument.
Sec. 751.009. MEANING AND
EFFECT OF DURABLE POWER OF ATTORNEY. The meaning and effect of a durable
power of attorney is determined by the law of the jurisdiction indicated in
the durable power of attorney and, in the absence of an indication of
jurisdiction, by:
(1) the law of the jurisdiction of the principal's domicile, if
the principal's domicile is indicated in the power of attorney; or
(2) the law of the
jurisdiction in which the durable power of attorney was executed, if the principal's domicile is not indicated in
the power of attorney.
Sec. 751.010. JUDICIAL
RELIEF. (a) The following may bring an action in which a court is
requested to construe a durable power of attorney or review the agent's
conduct and grant appropriate relief:
(1) the principal or the
agent;
(2) a guardian,
conservator, or other fiduciary acting for the principal;
(3) a person named as a
beneficiary to receive any property, benefit, or contractual right on the
principal's death;
(4) a governmental agency
having regulatory authority to protect the welfare of the principal; and
(5) a person who
demonstrates to the court sufficient interest in the principal's welfare or
estate.
(b) A person who is
requested to accept a durable power of attorney may bring an action in a
court for declaratory relief to
construe the durable power of attorney.
(c) On motion by the
principal, the court shall dismiss an action filed under this section
unless the court finds that the principal lacks capacity to revoke the
agent's authority or the durable power of attorney.
Sec. 751.011. ACCEPTANCE
OF APPOINTMENT AS AGENT. Except as otherwise provided in the durable power
of attorney, a person accepts appointment as an agent under a durable power
of attorney by exercising authority or performing duties as an agent or by
any other assertion or conduct indicating acceptance of the appointment.
Sec. 751.012. CO-AGENTS
AND SUCCESSOR AGENTS. (a) A principal may designate two or more persons to
act as co-agents. Unless the durable power of attorney otherwise provides,
the co-agents must act jointly.
(b) A principal may
designate one or more successor agents to act if an agent resigns, dies, or
becomes incapacitated, is not qualified to serve, or declines to serve. A
principal may grant authority to designate one or more successor agents to
an agent or other person designated by name, office, or function. Unless
the durable power of attorney otherwise provides, a successor agent:
(1) has the same
authority as the authority granted to the predecessor agent; and
(2) is not considered an
agent under this subtitle and may not act until all predecessor agents to the successor agent have resigned,
died, or become incapacitated, are not or are no longer qualified to serve,
or have declined to serve.
(c) If the principal has
designated co-agents and one or more successor agents for a specified
co-agent:
(1) the authority granted
to a successor agent is the same as the authority granted to the
predecessor co-agent whom the successor agent is designated to succeed; and
(2) the specified
co-agent is considered an agent under this subtitle and may act in that
capacity only when the predecessor co-agent whom the successor agent is
designated to succeed has died, becomes incapacitated, resigns, is not or
is no longer qualified to serve, or has declined to serve.
(d) Except as otherwise
provided by Subsection (e) or the durable power of attorney, an agent who
does not participate in or conceal a breach of fiduciary duty committed by
another agent, including a predecessor agent, is not liable for the actions
of the other agent.
(e) An agent who has
actual knowledge of a breach or imminent breach of fiduciary duty by
another agent shall notify the principal and, if the principal is
incapacitated, shall take any action reasonably appropriate under the
circumstances to safeguard the principal's best interest. An agent who
fails to notify the principal or take action as required by this subsection
is liable for the reasonably foreseeable damages that could have been
avoided if the agent had notified the principal or taken the action.
Sec. 751.013.
REIMBURSEMENT AND COMPENSATION OF AGENT. Unless the durable power of
attorney otherwise provides or is in
conflict with another agreement or instrument, an agent is entitled
to reimbursement of reasonable expenses incurred on the principal's behalf
and to compensation that is reasonable under the circumstances.
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SECTION 1.03. The heading to
Subchapter B, Chapter 751, Estates Code, is amended.
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SECTION 1.04. Same as
introduced version.
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SECTION 1.04. Section
751.051, Estates Code, is amended to read as follows:
Sec. 751.051. EFFECT OF ACTS
PERFORMED BY [ATTORNEY IN FACT OR] AGENT [DURING PRINCIPAL'S
DISABILITY OR INCAPACITY]. (a) An [Each] act performed
by an [attorney in fact or] agent under a durable power of attorney
[during a period of the principal's disability or incapacity] has
the same effect[,] and inures to the benefit of and binds the
principal and the principal's successors in interest[,] as if the
principal had performed the act [were not disabled or
incapacitated].
(b) If a durable power of
attorney grants an agent appropriate authority with respect to a
transaction, an agent may execute and deliver the documents necessary for
the transaction, including documents creating a lien against the
principal's homestead under Section 50, Article XVI, Texas Constitution,
regardless of the fact that the durable power of attorney was signed before
the transaction.
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SECTION 1.05. Section
751.051, Estates Code, is amended to read as follows:
Sec. 751.051. EFFECT OF ACTS
PERFORMED BY [ATTORNEY IN FACT OR] AGENT [DURING PRINCIPAL'S
DISABILITY OR INCAPACITY]. An [Each] act performed by an
[attorney in fact or] agent under a durable power of attorney [during
a period of the principal's disability or incapacity] has the same
effect[,] and inures to the benefit of and binds the principal and
the principal's successors in interest[,] as if the principal had
performed the act [were not disabled or incapacitated].
No
equivalent provision.
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SECTION 1.05. Section
751.052, Estates Code, is amended.
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SECTION 1.06. Same as
introduced version.
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SECTION 1.06. Section
751.057, Estates Code, is amended.
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SECTION 1.07. Same as
introduced version.
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SECTION 1.07. Chapter 751,
Estates Code, is amended by adding Subchapter B-1 to read as follows:
SUBCHAPTER B-1. DURATION
OF DURABLE POWER OF ATTORNEY; ACCEPTANCE OF AND RELIANCE ON DURABLE POWER
OF ATTORNEY
Sec. 751.061. TERMINATION
OF DURABLE POWER OF ATTORNEY. A durable power of attorney terminates when:
(1) the principal dies;
(2) the principal revokes
the durable power of attorney;
(3) the durable power of
attorney provides that it terminates;
(4) the purpose of the
durable power of attorney is accomplished;
(5) the principal revokes
the agent's authority or the agent dies, becomes incapacitated, or
resigns, and the durable power of attorney does not provide for another
agent to act under the durable power of attorney; or
(6) a permanent guardian
of the estate of the principal has qualified to serve in that capacity as
provided by Section 751.052.
Sec. 751.062. TERMINATION
OF AGENT'S AUTHORITY. (a) An agent's authority under a durable power of
attorney terminates when:
(1) the principal revokes
the authority;
(2) the agent dies,
becomes incapacitated, or resigns;
(3) an action is filed for the dissolution or
annulment of the agent's marriage to the principal or to declare the
marriage of the agent and principal void, unless the durable power
of attorney otherwise provides; or
(4) the durable power of
attorney terminates.
(b) Unless the durable
power of attorney otherwise provides, an agent's authority may be exercised
until the agency's authority terminates under Subsection (a),
notwithstanding a lapse of time since the execution of the durable power of
attorney.
Sec. 751.063. EFFECT OF
TERMINATION OF DURABLE POWER OF ATTORNEY OR AGENT'S AUTHORITY ON CERTAIN
PERSONS.
Sec. 751.064. EFFECT ON
PREVIOUS DURABLE POWER OF ATTORNEY.
Sec. 751.065. ACCEPTANCE
OF AND RELIANCE ON POWER OF ATTORNEY. (a) A person who in good faith accepts a durable power of
attorney without actual knowledge that the signature of the principal is
not genuine may rely on the presumption under Section 751.007 that the
signature is genuine and that the durable power of attorney was properly
executed.
(b) A person who in good faith accepts a durable power of
attorney without actual knowledge that the durable power of attorney is
void, invalid, or terminated, that the purported agent's authority is void,
invalid, or terminated, or that the agent is exceeding or improperly
exercising the agent's authority may rely on the power of attorney as if:
(1) the power of attorney
were genuine, valid, and still in effect;
(2) the agent's authority
were genuine, valid, and still in effect; and
(3) the agent had not
exceeded and had properly exercised the authority.
(c) A person who is
requested to accept a durable power of attorney may request, and rely on,
without further investigation:
(1) an agent's
certification under penalty of perjury of any factual matter concerning the
principal, agent, or power of attorney;
(2) an English
translation of the power of attorney if the power of attorney contains,
wholly or partly, language other than English; and
(3) an opinion of counsel
as to any matter of law concerning the power of attorney if the person
making the request provides in a writing or other record the reason for the
request.
(d) An English
translation or an opinion of counsel requested under this section must be
provided to the principal at the
principal's own expense unless the request is made not earlier than
the seventh business day after the
date the power of attorney is presented for acceptance.
(e) For purposes of this
section and Section 751.066, a
person who conducts activities through employees is without actual
knowledge of a fact relating to a durable power of attorney, a principal,
or an agent if the employee conducting the transaction involving the power
of attorney is without actual knowledge of the fact.
No
equivalent provision.
Sec. 751.066. LIABILITY
FOR REFUSAL TO ACCEPT POWER OF ATTORNEY. (a) Except as otherwise provided
by Subsection (d), a person shall either accept a durable power of attorney
or request a certification, a translation, or an opinion of counsel under
Section 751.065 not later than the seventh business day after the date the
durable power of attorney is presented for acceptance.
(b) A person who requests
a certification, a translation, or an opinion of counsel under Section
751.065 must accept the durable power of attorney not later than the fifth
business day after the date on which the certification, translation, or
opinion of counsel is received.
(c) Except as provided by
Subsection (d), a person may not:
(1) require an additional
or different form of durable power of attorney for authority granted in the
durable power of attorney presented; or
(2) require that the
durable power of attorney be recorded in the official public records of a
county clerk unless the recordation is required by Section 751.151.
(d) A person is not
required to accept a durable power of attorney if:
(1) the person is not
otherwise required to engage in a transaction with the principal in the
same circumstances;
(2) the person's
engagement in a transaction with the agent or the principal in the same
circumstances would be inconsistent with state or federal law other than
this chapter;
(3) the person has actual
knowledge of the termination of the agent's authority or of the power of
attorney before exercise of the power;
(4) a request for a
certification, a translation, or an opinion of counsel under Section
751.065 is refused;
(5) the person in good
faith believes that the power is not valid or that the agent does not have
the authority to perform the act requested, regardless of whether a
certification, a translation, or an opinion of counsel under Section
751.065 has been requested or provided;
(6) the person makes, or
has actual knowledge that another person has made, a report to a law
enforcement agency or other federal or state agency, including the
Department of Family and Protective Services, stating a good faith belief
that the principal may be subject to physical or financial abuse, neglect,
exploitation, or abandonment by the agent or a person acting on behalf of
or with the agent; or
(7) the person has
received conflicting instructions or communications from co-agents
regarding a matter, or in good faith believes that co-agents do not agree
regarding a matter, but the person may refuse to accept the durable power
of attorney only with respect to that matter.
(e) A person who refuses
to accept a durable power of attorney in violation of this section is
subject to:
(1) a judgment for
damages to the same extent as if the person had refused to allow the
principal to act on the principal's own behalf;
(2) a court order
mandating acceptance of the durable power of attorney; and
(3) liability for
reasonable attorney's fees and costs incurred in any proceeding that:
(A) confirms the validity
of the durable power of attorney;
(B) results in the award
of damages against the person; or
(C) mandates acceptance
of the durable power of attorney.
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SECTION 1.08. Chapter 751,
Estates Code, is amended by adding Subchapter B-1 to read as follows:
SUBCHAPTER B-1. DURATION
OF DURABLE POWER OF ATTORNEY; ACCEPTANCE OF AND RELIANCE ON DURABLE POWER
OF ATTORNEY
Sec. 751.061. TERMINATION
OF DURABLE POWER OF ATTORNEY. A durable power of attorney terminates when:
(1) the principal dies;
(2) the principal revokes
the durable power of attorney;
(3) the durable power of
attorney provides that it terminates;
(4) the purpose of the
durable power of attorney is accomplished;
(5) the principal revokes
the agent's authority or the agent dies, becomes incapacitated, or
resigns, and the durable power of attorney does not provide for another
agent to act under the durable power of attorney;
(6) a permanent guardian
of the estate of the principal has qualified to serve in that capacity as
provided by Section 751.052; or
(7) the agent's authority is otherwise terminated under Section
751.062 and the durable power of attorney does not provide for another
agent to act under the durable power of attorney.
Sec. 751.062. TERMINATION
OF AGENT'S AUTHORITY. (a) An agent's authority under a durable power of
attorney terminates when:
(1) the principal revokes
the authority;
(2) the agent dies,
becomes incapacitated, or resigns;
(3) the agent's marriage to the principal is
dissolved by court decree of divorce or annulment or is declared void by a
court, unless the durable power of attorney otherwise provides; or
(4) the durable power of
attorney terminates.
(b) Unless the durable
power of attorney otherwise provides, an agent's authority may be exercised
until the agency's authority terminates under Subsection (a),
notwithstanding a lapse of time since the execution of the durable power of
attorney.
Sec. 751.063. EFFECT OF
TERMINATION OF DURABLE POWER OF ATTORNEY OR AGENT'S AUTHORITY ON CERTAIN
PERSONS.
Sec. 751.064. EFFECT ON
PREVIOUS DURABLE POWER OF ATTORNEY.
Sec. 751.065. ACCEPTANCE
OF AND RELIANCE ON POWER OF ATTORNEY. (a) A person who accepts a durable
power of attorney without actual knowledge that the signature of the
principal is not genuine may rely on the presumption under Section 751.007
that the signature is genuine and that the durable power of attorney was
properly executed.
(b) A person who accepts
a durable power of attorney without actual knowledge that the durable power
of attorney is void, invalid, or terminated, that the purported agent's
authority is void, invalid, or terminated, or that the agent is exceeding
or improperly exercising the agent's authority may rely on the power of
attorney as if:
(1) the power of attorney
were genuine, valid, and still in effect;
(2) the agent's authority
were genuine, valid, and still in effect; and
(3) the agent had not
exceeded and had properly exercised the authority.
(c) A person who is
requested to accept a durable power of attorney may request, and rely on,
without further investigation:
(1) an agent's
certification under penalty of perjury of any factual matter concerning the
principal, agent, or power of attorney,
which is conclusive proof of the matter;
(2) an English
translation of the power of attorney if the power of attorney contains,
wholly or partly, language other than English; and
(3) an opinion of counsel
containing no material qualifications
as to any matter of law concerning the power of attorney if the person
making the request provides in a writing or other record the reason for the
request.
(d) An English
translation or an opinion of counsel requested under this section must be
provided by the agent at the agent's own
expense unless the request is made not earlier than the 10th business day after the date the power
of attorney is presented for acceptance.
(e) For purposes of this
section, a person who conducts activities through employees is without
actual knowledge of a fact relating to a durable power of attorney, a
principal, or an agent if the employee conducting the transaction involving
the power of attorney is without actual knowledge of the fact.
(f) A certification
described by Subsection (c) may be in the following form:
CERTIFICATION OF POWER OF
ATTORNEY BY AGENT
I, ___________ (agent),
certify under penalty of perjury that:
1. I am the agent named
in the power of attorney validly executed by ___________ (principal)
("principal") on ____________ (date), and the power of attorney
is now in full force and effect.
2. The principal is not
deceased and is presently domiciled in ___________ (city and
state/territory or foreign country).
3. To the best of my
knowledge after diligent search and inquiry:
a. The power of attorney
has not been revoked by the principal or suspended or partially or
completely terminated by the occurrence of any event, whether or not
referenced in the power of attorney;
b. A permanent or
temporary guardian of the estate of the principal has not qualified to
serve in that capacity;
c. If I am (or was) the
principal's spouse, my marriage to the principal has not been dissolved by
court decree of divorce or annulment or declared void by a court (or the
power of attorney provides specifically that my appointment as the agent
for the principal does not terminate if my marriage to the principal is
dissolved by court decree of divorce or annulment or is declared void by a
court);
d. No proceeding has been
commenced for a temporary or permanent guardianship of the person or
estate, or both, of the principal; and
e. The exercise of my
authority is not prohibited by another agreement or instrument.
4. If under its terms the
power of attorney becomes effective on the disability or incapacity of the
principal or at a future time or on the occurrence of a contingency, the
principal is now disabled or incapacitated or the specified future time or
contingency has occurred.
5. I am acting within the
scope of my authority under the power of attorney, and my authority has not
been altered or terminated.
6. If applicable, I am
the successor to ___________ (predecessor agent), who has resigned, died,
or become incapacitated, is not or is no longer qualified to serve, has
declined to serve as agent, or is otherwise unable to act. There is no
prior agent remaining under the power of attorney that precludes my acting
as successor agent.
7. I agree not to
exercise any powers granted by the power of attorney if I attain knowledge
that the power of attorney has been revoked, suspended, or partially or
completely terminated.
8. A true and correct
copy of the power of attorney is attached to this document.
9. If applicable, the
power of attorney was executed in the law office of ____________________.
Date: __________, 20__.
__________________________________
(signature of agent)
No
equivalent provision.
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SECTION 1.08. Sections
751.101, 751.102, 751.103, 751.104, 751.105, and 751.106, Estates Code, are
amended to read as follows:
Sec. 751.101. FIDUCIARY
DUTIES. An [attorney in fact or] agent
is a fiduciary and has a duty
to inform and to account for actions taken under the power of attorney.
Sec. 751.102. DUTY TO TIMELY
INFORM PRINCIPAL.
Sec. 751.103. MAINTENANCE OF
RECORDS.
Sec. 751.104. ACCOUNTING.
Sec. 751.105. EFFECT OF
FAILURE TO COMPLY; SUIT.
Sec. 751.106. EFFECT OF
SUBCHAPTER ON PRINCIPAL'S RIGHTS. This subchapter does not limit the right
of the principal to terminate the power of attorney or to make additional
requirements of or to give additional instructions to the [attorney in
fact or] agent.
|
SECTION 1.09. Sections
751.101, 751.102, 751.103, 751.104, 751.105, and 751.106, Estates Code, are
amended to read as follows:
Sec. 751.101. FIDUCIARY
DUTIES. An [attorney in fact or] agent who accepts appointment as an agent under a durable power of
attorney as provided by Section 751.011 is a fiduciary and has a
duty to inform and to account for actions taken under the power of
attorney.
Sec. 751.102. DUTY TO TIMELY
INFORM PRINCIPAL.
Sec. 751.103. MAINTENANCE OF
RECORDS.
Sec. 751.104. ACCOUNTING.
Sec. 751.105. EFFECT OF FAILURE
TO COMPLY; SUIT.
Sec. 751.106. EFFECT OF
SUBCHAPTER ON PRINCIPAL'S RIGHTS. This subchapter does not limit the right
of the principal to terminate the power of attorney or to make additional
requirements of, [or to] give additional instructions to, or expressly modify the duties or obligations
of the [attorney in fact or] agent.
|
|
SECTION 1.09. Section
751.151, Estates Code, is amended.
|
SECTION 1.10. Same as
introduced version.
|
|
SECTION 1.10. Chapter 751,
Estates Code, is amended by adding Subchapter E to read as follows:
SUBCHAPTER E. AUTHORITY OF
AGENT UNDER POWER OF ATTORNEY
Sec. 751.201. GRANT OF
GENERAL AUTHORITY; AUTHORITY REQUIRING SPECIFIC GRANT. (a) Only if the
power of attorney expressly grants the agent the authority and the exercise
of the authority is not otherwise prohibited by another agreement or
instrument to which the authority or property is subject, an agent under a
durable power of attorney, on behalf of the principal or with respect to
the principal's property, may:
(1) create, amend,
revoke, or terminate an inter vivos trust;
(2) make a gift;
(3) create or change
rights of survivorship;
(4) create or change a
beneficiary designation;
(5) delegate authority
granted under the power of attorney; or
(6) waive the principal's right to be a beneficiary of a joint and
survivor annuity, including a survivor benefit under a retirement plan.
(b) Notwithstanding a
grant of authority to perform an act described by Subsection (a), unless
the durable power of attorney otherwise provides, an agent who is not an
ancestor, spouse, or descendant of the principal may not exercise authority
under the power of attorney to create in the agent, or in an individual to
whom the agent owes a legal obligation of support, an interest in the principal's
property, whether by gift, right of survivorship, beneficiary designation,
disclaimer, or otherwise.
(c) Subject to
Subsections (a), (b), (d), and (e), if a durable power of attorney grants
to an agent the authority to perform all acts that a principal could
perform, the agent has the general authority conferred by Subchapter C,
Chapter 752.
(d) Unless the durable
power of attorney otherwise provides, a grant of authority to make a gift
is subject to Section 751.202.
(e) Subject to
Subsections (a), (b), and (d), if the subjects over which authority is
granted in a durable power of attorney are similar or overlap, the broadest
authority controls.
(f) Authority granted in
a durable power of attorney is exercisable with respect to property that
the principal has when the power of attorney is executed or acquires later,
regardless of whether:
(1) the property is
located in this state; and
(2) the authority is
exercised in this state or the power of attorney is executed in this state.
(g) An agent who is
expressly granted any of the authority under Subsection (a) shall attempt
to preserve the principal's estate plan, to the extent actually known by
the agent, if preserving the plan is consistent with the principal's best
interest based on all relevant factors, including:
(1) the value and nature
of the principal's property;
(2) the principal's
foreseeable obligations and need for maintenance;
(3) minimization of
taxes, including income, estate, inheritance, generation-skipping transfer,
and gift taxes; and
(4) eligibility for a
benefit, a program, or assistance under a statute or regulation.
Sec. 751.202. GIFTS.
(a) In this section, a gift for the benefit of a person includes:
(1) a gift to a trust;
(2) an account under the
Texas Uniform Transfers to Minors Act or a similar law of any other state;
and
(3) a tuition savings
account or prepaid tuition plan as described by Section 529, Internal
Revenue Code of 1986.
(b) Unless the durable
power of attorney otherwise provides, language in a power of attorney
granting general authority with respect to gifts authorizes the agent to
only:
(1) make outright to, or
for the benefit of, a person a gift of any of the principal's property,
including by the exercise of a presently exercisable general power of
appointment held by the principal, in an amount per donee not to exceed:
(A) the annual dollar
limits of the federal gift tax exclusion under Section 2503(b), Internal
Revenue Code of 1986, without regard to whether the federal gift tax
exclusion applies to the gift; or
(B) if the principal's
spouse agrees to consent to a split gift as provided by Section 2513,
Internal Revenue Code of 1986, twice the annual federal gift tax exclusion
limit; and
(2) consent, as provided
by Section 2513, Internal Revenue Code of 1986, to the splitting of a gift
made by the principal's spouse in an amount per donee not to exceed the
aggregate annual gift tax exclusions for both spouses.
(c) An agent may make a
gift of the principal's property only as the agent determines is consistent
with the principal's objectives if actually known by the agent and, if
unknown, as the agent determines is consistent with the principal's best
interest based on all relevant factors, including:
(1) the value and nature
of the principal's property;
(2) the principal's
foreseeable obligations and need for maintenance;
(3) minimization of
taxes, including income, estate, inheritance, generation-skipping transfer,
and gift taxes;
(4) eligibility for a
benefit, a program, or assistance under a statute or regulation; and
(5) the principal's
personal history of making or joining in making gifts.
Sec. 751.203. BENEFICIARY
DESIGNATIONS. (a) Unless the durable power of attorney otherwise
provides, authority granted to an agent under Section 751.201(a)(4)
includes the power to:
(1) create or change a
beneficiary designation under an account, a contract, or another
arrangement that authorizes the principal to designate a beneficiary,
including insurance and annuity contracts, qualified and nonqualified
retirement plans, including those retirement plans defined by Section
752.113, employment agreements, including deferred compensation agreements,
and residency agreements;
(2) enter into or change
a P.O.D. account or trust account under Chapter 113; or
(3) create or change a
nontestamentary payment or transfer under Chapter 111.
(b) If an agent is
granted authority under Section 751.201(a)(4) and if the durable power of
attorney grants the authority to the agent in Section 752.108 or 752.113,
then, unless the durable power of attorney otherwise provides, the
authority of the agent to designate the agent as a beneficiary is not
subject to the limitations prescribed by Sections 752.108(b) and
752.113(c).
(c) If an agent is not
granted authority under Section 751.201(a)(4) and if the durable power of
attorney grants the authority to the agent in Section 752.108 or 752.113,
then, unless the durable power of attorney otherwise provides and
notwithstanding Section 751.201, the agent's authority to designate the
agent as a beneficiary is subject to the limitations prescribed by Sections
752.108(b) and 752.113(c).
Sec. 751.204.
INCORPORATION OF AUTHORITY.
|
SECTION 1.11. Chapter 751,
Estates Code, is amended by adding Subchapter E to read as follows:
SUBCHAPTER E. AUTHORITY OF
AGENT UNDER POWER OF ATTORNEY
Sec. 751.201. GRANT OF
GENERAL AUTHORITY; AUTHORITY REQUIRING SPECIFIC GRANT. (a) Only if the
power of attorney expressly grants the agent the authority and the exercise
of the authority is not otherwise prohibited by another agreement or
instrument to which the authority or property is subject, an agent under a
durable power of attorney, on behalf of the principal or with respect to
the principal's property, may:
(1) create, amend,
revoke, or terminate an inter vivos trust;
(2) make a gift;
(3) create or change
rights of survivorship;
(4) create or change a
beneficiary designation; or
(5) delegate authority
granted under the power of attorney.
(b) Notwithstanding a
grant of authority to perform an act described by Subsection (a), unless
the durable power of attorney otherwise provides, an agent who is not an
ancestor, spouse, or descendant of the principal may not exercise authority
under the power of attorney to create in the agent, or in an individual to
whom the agent owes a legal obligation of support, an interest in the
principal's property, whether by gift, right of survivorship, beneficiary
designation, disclaimer, or otherwise.
(c) Subject to
Subsections (a), (b), (d), and (e), if a durable power of attorney grants
to an agent the authority to perform all acts that a principal could
perform, the agent has the general authority conferred by Subchapter C,
Chapter 752.
(d) Unless the durable
power of attorney otherwise provides, a grant of authority to make a gift
is subject to Section 751.202.
(e) Subject to
Subsections (a), (b), and (d), if the subjects over which authority is
granted in a durable power of attorney are similar or overlap, the broadest
authority controls.
(f) Authority granted in
a durable power of attorney is exercisable with respect to property that
the principal has when the power of attorney is executed or acquires later,
regardless of whether:
(1) the property is
located in this state; and
(2) the authority is
exercised in this state or the power of attorney is executed in this state.
(g) An agent who is
expressly granted any of the authority under Subsection (a) shall attempt
to preserve the principal's estate plan, to the extent actually known by
the agent, if preserving the plan is consistent with the principal's best
interest based on all relevant factors, including:
(1) the value and nature
of the principal's property;
(2) the principal's
foreseeable obligations and need for maintenance;
(3) minimization of
taxes, including income, estate, inheritance, generation-skipping transfer,
and gift taxes; and
(4) eligibility for a
benefit, a program, or assistance under a statute or regulation.
Sec. 751.202. GIFTS.
(a) In this section, a gift for the benefit of a person includes:
(1) a gift to a trust;
(2) an account under the
Texas Uniform Transfers to Minors Act or a similar law of any other state;
and
(3) a tuition savings
account or prepaid tuition plan as described by Section 529, Internal
Revenue Code of 1986.
(b) Unless the durable
power of attorney otherwise provides, language in a power of attorney
granting general authority with respect to gifts authorizes the agent to
only:
(1) make outright to, or
for the benefit of, a person a gift of any of the principal's property,
including by the exercise of a presently exercisable general power of
appointment held by the principal, in an amount per donee not to exceed:
(A) the annual dollar
limits of the federal gift tax exclusion under Section 2503(b), Internal
Revenue Code of 1986, without regard to whether the federal gift tax
exclusion applies to the gift; or
(B) if the principal's
spouse agrees to consent to a split gift as provided by Section 2513,
Internal Revenue Code of 1986, twice the annual federal gift tax exclusion
limit; and
(2) consent, as provided
by Section 2513, Internal Revenue Code of 1986, to the splitting of a gift
made by the principal's spouse in an amount per donee not to exceed the
aggregate annual federal gift tax
exclusions for both spouses.
(c) An agent may make a
gift of the principal's property only as the agent determines is consistent
with the principal's objectives if actually known by the agent and, if
unknown, as the agent determines is consistent with the principal's best
interest based on all relevant factors, including:
(1) the value and nature
of the principal's property;
(2) the principal's
foreseeable obligations and need for maintenance;
(3) minimization of
taxes, including income, estate, inheritance, generation-skipping transfer,
and gift taxes;
(4) eligibility for a
benefit, a program, or assistance under a statute or regulation; and
(5) the principal's
personal history of making or joining in making gifts.
Sec. 751.203. BENEFICIARY
DESIGNATIONS. (a) Unless the durable power of attorney otherwise
provides, and except as provided by Section
751.201(b), authority granted to an agent under Section
751.201(a)(4) includes the power to:
(1) create or change a
beneficiary designation under an account, a contract, or another
arrangement that authorizes the principal to designate a beneficiary,
including insurance and annuity contracts, qualified and nonqualified
retirement plans, including those retirement plans defined by Section
752.113, employment agreements, including deferred compensation agreements,
and residency agreements;
(2) enter into or change
a P.O.D. account or trust account under Chapter 113; or
(3) create or change a
nontestamentary payment or transfer under Chapter 111.
(b) If an agent is granted
authority under Section 751.201(a)(4) and if the durable power of attorney
grants the authority to the agent in Section 752.108 or 752.113, then,
unless the durable power of attorney otherwise provides, the authority of
the agent to designate the agent as a beneficiary is not subject to the
limitations prescribed by Sections 752.108(b) and 752.113(c).
(c) If an agent is not
granted authority under Section 751.201(a)(4) and if the durable power of
attorney grants the authority to the agent in Section 752.108 or 752.113,
then, unless the durable power of attorney otherwise provides and
notwithstanding Section 751.201, the agent's authority to designate the
agent as a beneficiary is subject to the limitations prescribed by Sections
752.108(b) and 752.113(c).
Sec. 751.204.
INCORPORATION OF AUTHORITY.
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|
SECTION 1.11. Section
752.051, Estates Code, is amended to read as follows:
Sec. 752.051. FORM. The
following form is known as a "statutory durable power of
attorney":
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, SUBTITLE P, TITLE 2, ESTATES 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.
You should select someone you
trust to serve as your agent (attorney in fact). Unless you specify otherwise,
generally the agent's (attorney in fact's) authority will continue until:
(1) you die or revoke the
power of attorney;
(2) your agent (attorney in
fact) resigns or is unable to act for you; or
(3) a guardian is appointed
for your estate.
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 that I have
initialed below. (YOU MAY APPOINT CO-AGENTS. UNLESS YOU PROVIDE
OTHERWISE, CO-AGENTS MAY ACT INDEPENDENTLY.)
TO GRANT ALL OF THE FOLLOWING
POWERS, INITIAL THE LINE IN FRONT OF (N) AND IGNORE THE LINES IN FRONT OF
THE OTHER POWERS LISTED IN (A) THROUGH (M).
TO GRANT A POWER, YOU MUST
INITIAL THE LINE IN FRONT OF THE POWER YOU ARE GRANTING.
TO WITHHOLD A POWER, DO NOT
INITIAL THE LINE IN FRONT OF THE POWER. YOU MAY, BUT DO NOT NEED TO, CROSS
OUT EACH POWER WITHHELD.
____ (A) Real property
transactions;
____ (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) Tax matters;
____ (N) ALL OF THE POWERS
LISTED IN (A) THROUGH (M). YOU DO NOT HAVE TO INITIAL THE LINE IN FRONT OF
ANY OTHER POWER IF YOU INITIAL LINE (N).
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 outright to
or for the benefit of a person, including by the exercise of a presently
exercisable general power of appointment held by me, 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 BELOW
[ABOVE], THIS POWER OF ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL
CONTINUE UNTIL IT TERMINATES [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. Termination
[Revocation] of the durable power of attorney is not effective as to
a third party until the third party receives actual notice of the termination
[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
__________, _____________
___________________________
(your signature)
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: __________
IMPORTANT INFORMATION FOR
AGENT (ATTORNEY IN FACT)
Agent's Duties
When you accept the authority
granted under this power of attorney, you establish a "fiduciary"
relationship with the principal. This is a special legal relationship that
imposes on you legal duties that continue until you resign or the power of
attorney is terminated or revoked by the principal or by operation of law.
A fiduciary duty generally includes the duty to:
(1) act in good faith;
(2) do nothing beyond the
authority granted in this power of attorney;
(3) act loyally for the
principal's benefit;
(4) avoid conflicts that
would impair your ability to act in the principal's best interest; and
(5) disclose your identity
as an agent or attorney in fact when you act for the principal by writing
or printing the name of the principal and signing your own name as
"agent" or "attorney in fact" in the following manner:
(Principal's Name) by (Your
Signature) as Agent (or as Attorney in Fact)
In addition, the Durable
Power of Attorney Act (Subtitle P, Title 2, Estates Code) requires you to:
(1) maintain records of each
action taken or decision made on behalf of the principal;
(2) maintain all records
until delivered to the principal, released by the principal, or discharged
by a court; and
(3) if requested by the
principal, provide an accounting to the principal that, unless otherwise
directed by the principal or otherwise provided in the Special
Instructions, must include:
(A) the property belonging
to the principal that has come to your knowledge or into your possession;
(B) each action taken or
decision made by you as agent or attorney in fact;
(C) a complete account of
receipts, disbursements, and other actions of you as agent or attorney in
fact that includes the source and nature of each receipt, disbursement, or
action, with receipts of principal and income shown separately;
(D) a listing of all
property over which you have exercised control that includes an adequate
description of each asset and the asset's current value, if known to you;
(E) the cash balance on hand
and the name and location of the depository at which the cash balance is
kept;
(F) each known liability;
(G) any other information
and facts known to you as necessary for a full and definite understanding of
the exact condition of the property belonging to the principal; and
(H) all documentation
regarding the principal's property.
Termination of Agent's
Authority
You must stop acting on
behalf of the principal if you learn of any event that terminates this
power of attorney or your authority under this power of attorney. An event
that terminates this power of attorney or your authority to act under this
power of attorney includes:
(1) the principal's death;
(2) the principal's
revocation of this power of attorney or your authority;
(3) the occurrence of a
termination event stated in this power of attorney;
(4) if you are married to
the principal, the dissolution of your marriage by court decree of divorce
or annulment;
(5) the appointment and
qualification of a permanent guardian of the principal's estate; or
(6) if ordered by a court,
the suspension of this power of attorney on the appointment and
qualification of a temporary guardian until the date the term of the
temporary guardian expires.
Liability of Agent
The authority granted to you
under this power of attorney is specified in the Durable Power of Attorney
Act (Subtitle P, Title 2, Estates Code). If you violate the Durable Power
of Attorney Act or act beyond the authority granted, you may be liable for
any damages caused by the violation or subject to prosecution for
misapplication of property by a fiduciary under Chapter 32 of the Texas
Penal Code.
THE ATTORNEY IN FACT OR
AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY
AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT.
|
SECTION 1.12. Section
752.051, Estates Code, is amended to read as follows:
Sec. 752.051. FORM. The
following form is known as a "statutory durable power of
attorney":
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, SUBTITLE P, TITLE 2, ESTATES 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.
You should select someone you
trust to serve as your agent (attorney in fact). Unless you specify
otherwise, generally the agent's (attorney in fact's) authority will
continue until:
(1) you die or revoke the
power of attorney;
(2) your agent (attorney in
fact) resigns or is unable to act for you; or
(3) a guardian is appointed
for your estate.
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 that I have
initialed below. (YOU MAY APPOINT CO-AGENTS. UNLESS YOU PROVIDE
OTHERWISE, CO-AGENTS MUST ACT JOINTLY.)
TO GRANT ALL OF THE FOLLOWING
POWERS, INITIAL THE LINE IN FRONT OF (N) AND IGNORE THE LINES IN FRONT OF
THE OTHER POWERS LISTED IN (A) THROUGH (M).
TO GRANT A POWER, YOU MUST
INITIAL THE LINE IN FRONT OF THE POWER YOU ARE GRANTING.
TO WITHHOLD A POWER, DO NOT
INITIAL THE LINE IN FRONT OF THE POWER. YOU MAY, BUT DO NOT NEED TO, CROSS
OUT EACH POWER WITHHELD.
____ (A) Real property
transactions;
____ (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) Tax matters;
____ (N) ALL OF THE POWERS
LISTED IN (A) THROUGH (M). YOU DO NOT HAVE TO INITIAL THE LINE IN FRONT OF
ANY OTHER POWER IF YOU INITIAL LINE (N).
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 outright to
or for the benefit of a person, including by the exercise of a presently
exercisable general power of appointment held by me, 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 BELOW
[ABOVE], THIS POWER OF ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL
CONTINUE UNTIL IT TERMINATES [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. Termination
[Revocation] of this [the] durable power of attorney
is not effective as to a third party until the third party receives actual
notice of the termination [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, or if my marriage to an agent named by me is
dissolved by court decree of divorce or annulment or is declared void by a
court (unless I provided in this document that the dissolution or
declaration does not terminate the agent's authority to act under this
power of attorney),
I name the following (each to
act alone and successively, in the order named) as successor(s) to that
agent: __________.
Signed this ______ day of
__________, _____________
___________________________
(your signature)
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:
__________
IMPORTANT INFORMATION FOR
AGENT (ATTORNEY IN FACT)
Agent's Duties
When you accept the authority
granted under this power of attorney, you establish a "fiduciary"
relationship with the principal. This is a special legal relationship that
imposes on you legal duties that continue until you resign or the power of
attorney is terminated or revoked by the principal or by operation of law.
A fiduciary duty generally includes the duty to:
(1) act in good faith;
(2) do nothing beyond the authority
granted in this power of attorney;
(3) act loyally for the
principal's benefit;
(4) avoid conflicts that
would impair your ability to act in the principal's best interest; and
(5) disclose your identity
as an agent or attorney in fact when you act for the principal by writing
or printing the name of the principal and signing your own name as
"agent" or "attorney in fact" in the following manner:
(Principal's Name) by (Your
Signature) as Agent (or as Attorney in Fact)
In addition, the Durable Power
of Attorney Act (Subtitle P, Title 2, Estates Code) requires you to:
(1) maintain records of each
action taken or decision made on behalf of the principal;
(2) maintain all records
until delivered to the principal, released by the principal, or discharged
by a court; and
(3) if requested by the
principal, provide an accounting to the principal that, unless otherwise
directed by the principal or otherwise provided in the Special
Instructions, must include:
(A) the property belonging
to the principal that has come to your knowledge or into your possession;
(B) each action taken or
decision made by you as agent or attorney in fact;
(C) a complete account of
receipts, disbursements, and other actions of you as agent or attorney in
fact that includes the source and nature of each receipt, disbursement, or
action, with receipts of principal and income shown separately;
(D) a listing of all
property over which you have exercised control that includes an adequate
description of each asset and the asset's current value, if known to you;
(E) the cash balance on hand
and the name and location of the depository at which the cash balance is
kept;
(F) each known liability;
(G) any other information
and facts known to you as necessary for a full and definite understanding
of the exact condition of the property belonging to the principal; and
(H) all documentation
regarding the principal's property.
Termination of Agent's
Authority
You must stop acting on
behalf of the principal if you learn of any event that terminates this
power of attorney or your authority under this power of attorney. An event
that terminates this power of attorney or your authority to act under this
power of attorney includes:
(1) the principal's death;
(2) the principal's
revocation of this power of attorney or your authority;
(3) the occurrence of a
termination event stated in this power of attorney;
(4) if you are married to
the principal, the dissolution of your marriage by court decree of divorce
or annulment or declaration that your
marriage is void, unless otherwise provided in this power of attorney;
(5) the appointment and
qualification of a permanent guardian of the principal's estate; or
(6) if ordered by a court,
the suspension of this power of attorney on the appointment and
qualification of a temporary guardian until the date the term of the
temporary guardian expires.
Liability of Agent
The authority granted to you
under this power of attorney is specified in the Durable Power of Attorney
Act (Subtitle P, Title 2, Estates Code). If you violate the Durable Power
of Attorney Act or act beyond the authority granted, you may be liable for
any damages caused by the violation or subject to prosecution for
misapplication of property by a fiduciary under Chapter 32 of the Texas Penal
Code.
THE ATTORNEY IN FACT OR
AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY
AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT.
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SECTION 1.12. Subchapter B,
Chapter 752, Estates Code, is amended by adding Section 752.052 to read as
follows:
Sec. 752.052. MODIFYING
STATUTORY FORM TO GRANT SPECIFIC AUTHORITY. The statutory durable power of
attorney may be modified to allow the principal to grant the agent the
specific authority described by Section 751.201 by including the following
language:
"GRANT OF SPECIFIC
AUTHORITY (OPTIONAL)
My agent MAY NOT do any of
the following specific acts for me UNLESS I have INITIALED the specific
authority listed below:
(CAUTION: Granting any of
the following will give your agent the authority to take actions that could
significantly reduce your property or change how your property is
distributed at your death. INITIAL ONLY the specific authority you WANT to
give your agent. If you DO NOT want to grant your agent one or more of the
following powers, you may also CROSS OUT such power.)
( ) Create, amend,
revoke, or terminate an inter vivos trust
( ) Make a gift, subject
to the limitations of Section 751.202, the Durable Power of Attorney Act,
and any special instructions in this power of attorney
( ) Create or change
rights of survivorship
( ) Create or change a
beneficiary designation
( ) Authorize another
person to exercise the authority granted under this power of attorney
( ) Waive the principal's right to be a beneficiary of a joint and
survivor annuity, including a survivor benefit under a retirement plan".
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SECTION 1.13. Subchapter B,
Chapter 752, Estates Code, is amended by adding Section 752.052 to read as
follows:
Sec. 752.052. MODIFYING
STATUTORY FORM TO GRANT SPECIFIC AUTHORITY. The statutory durable power of
attorney may be modified to allow the principal to grant the agent the
specific authority described by Section 751.201 by including the following
language:
"GRANT OF SPECIFIC
AUTHORITY (OPTIONAL)
My agent MAY NOT do any of
the following specific acts for me UNLESS I have INITIALED the specific
authority listed below:
(CAUTION: Granting any of
the following will give your agent the authority to take actions that could
significantly reduce your property or change how your property is
distributed at your death. INITIAL ONLY the specific authority you WANT to
give your agent. If you DO NOT want to grant your agent one or more of the
following powers, you may also CROSS OUT such power.)
( ) Create, amend,
revoke, or terminate an inter vivos trust
( ) Make a gift, subject
to the limitations of Section 751.202, the Durable Power of Attorney Act,
and any special instructions in this power of attorney
( ) Create or change
rights of survivorship
( ) Create or change a
beneficiary designation
( ) Authorize another
person to exercise the authority granted under this power of
attorney".
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SECTION 1.13. Section
752.102, Estates Code, is amended to read as follows:
Sec. 752.102. REAL PROPERTY
TRANSACTIONS. (a) The language conferring authority with respect to
real property transactions in a statutory durable power of attorney
empowers the attorney in fact or agent, without further reference to a
specific description of the real property, to:
(1) accept as a gift or as
security for a loan or reject, demand, buy, lease, receive, or otherwise
acquire an interest in real property or a right incident to real property;
(2) sell, exchange, convey
with or without covenants, quitclaim, release, surrender, mortgage,
encumber, partition or consent to partitioning, subdivide, apply for
zoning, rezoning, or other governmental permits, plat or consent to
platting, develop, grant options concerning, lease or sublet, or otherwise
dispose of an estate or interest in real property or a right incident to
real property;
(3) release, assign,
satisfy, and enforce by litigation, action, or otherwise a mortgage, deed
of trust, encumbrance, lien, or other claim to real property that exists or
is claimed to exist;
(4) perform any act of
management or of conservation with respect to an interest in real property,
or a right incident to real property, owned or claimed to be owned by the
principal, including the authority to:
(A) insure against a
casualty, liability, or loss;
(B) obtain or regain
possession or protect the interest or right by litigation, action, or
otherwise;
(C) pay, compromise, or
contest taxes or assessments or apply for and receive refunds in connection
with the taxes or assessments;
(D) purchase supplies, hire
assistance or labor, or make repairs or alterations to the real property;
and
(E) manage and supervise an
interest in real property, including the mineral estate[, by, for
example:
[(i) entering into a
lease for oil, gas, and mineral purposes;
[(ii) making contracts
for development of the mineral estate; or
[(iii) making pooling and
unitization agreements];
(5) use, develop, alter,
replace, remove, erect, or install structures or other improvements on real
property in which the principal has or claims to have an estate, interest,
or right;
(6) participate in a
reorganization with respect to real property or a legal entity that owns an
interest in or right incident to real property, receive and hold shares of
stock or obligations received in a plan or reorganization, and act with
respect to the shares or obligations, including:
(A) selling or otherwise
disposing of the shares or obligations;
(B) exercising or selling an
option, conversion, or similar right with respect to the shares or
obligations; and
(C) voting the shares or
obligations in person or by proxy;
(7) change the form of title
of an interest in or right incident to real property; [and]
(8) dedicate easements or
other real property in which the principal has or claims to have an
interest to public use, with or without consideration;
(9) enter into mineral
transactions, including:
(A) negotiating and
making oil, gas, and other mineral leases covering any land, mineral, or
royalty interest in which the principal has or claims to have an interest;
(B) pooling and unitizing
all or part of the principal's land, mineral leasehold, mineral, royalty,
or other interest with land, mineral leasehold, mineral, royalty, or other
interest of one or more persons for the purpose of developing and producing
oil, gas, or other minerals, and making leases or assignments granting the
right to pool and unitize;
(C) entering into
contracts and agreements concerning the installation and operation of
plants or other facilities for the cycling, repressuring, processing, or
other treating or handling of oil, gas, or other minerals;
(D) conducting or
contracting for the conducting of seismic evaluation operations;
(E) drilling or
contracting for the drilling of wells for oil, gas, or other minerals;
(F) contracting for and
making "dry hole" and "bottom hole" contributions of
cash, leasehold interests, or other interests towards the drilling of
wells;
(G) using or contracting
for the use of any method of secondary or tertiary recovery of any mineral,
including the injection of water, gas, air, or other substances;
(H) purchasing oil, gas,
or other mineral leases, leasehold interests, or other interests for
any type of consideration, including farmout agreements requiring the
drilling or reworking of wells or participation therein;
(I) entering into farmout
agreements committing the principal to assign oil, gas, or other mineral
leases or interests in consideration for the drilling of wells or other
oil, gas, or mineral operations;
(J) negotiating the
transfer of and transferring oil, gas, or other mineral leases or
interests for any consideration, such as retained overriding royalty
interests of any nature, drilling or reworking commitments, or production
interests; and
(K) executing and
entering into contracts, conveyances, and other agreements or transfers
considered necessary or desirable to carry out the powers granted in this
section, regardless of whether the action is now or subsequently recognized
or considered as a common or proper practice by those engaged in the business
of prospecting for, developing, producing, processing, transporting, or
marketing minerals, including entering into and executing division orders,
oil, gas, or other mineral sales contracts, exploration agreements,
processing agreements, and other contracts relating to the processing,
handling, treating, transporting, and marketing of oil, gas, or other
mineral production from or accruing to the principal and receiving and
receipting for the proceeds thereof on behalf of the principal; and
(10) designate the
property that constitutes the principal's homestead.
(b) The power to mortgage
and encumber real property provided by this section includes the power to
execute documents necessary to create a lien against the principal's
homestead as provided by Section 50, Article XVI, Texas Constitution, and
to consent to the creation of a lien against the principal's spouse's homestead.
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SECTION 1.14. Section
752.102, Estates Code, is amended to read as follows:
Sec. 752.102. REAL PROPERTY
TRANSACTIONS. (a) The language conferring authority with respect to
real property transactions in a statutory durable power of attorney
empowers the attorney in fact or agent, without further reference to a
specific description of the real property, to:
(1) accept as a gift or as
security for a loan or reject, demand, buy, lease, receive, or otherwise
acquire an interest in real property or a right incident to real property;
(2) sell, exchange, convey
with or without covenants, quitclaim, release, surrender, mortgage,
encumber, partition or consent to partitioning, subdivide, apply for
zoning, rezoning, or other governmental permits, plat or consent to
platting, develop, grant options concerning, lease or sublet, or otherwise
dispose of an estate or interest in real property or a right incident to
real property;
(3) release, assign,
satisfy, and enforce by litigation, action, or otherwise a mortgage, deed
of trust, encumbrance, lien, or other claim to real property that exists or
is claimed to exist;
(4) perform any act of
management or of conservation with respect to an interest in real property,
or a right incident to real property, owned or claimed to be owned by the
principal, including the authority to:
(A) insure against a
casualty, liability, or loss;
(B) obtain or regain
possession or protect the interest or right by litigation, action, or
otherwise;
(C) pay, compromise, or
contest taxes or assessments or apply for and receive refunds in connection
with the taxes or assessments;
(D) purchase supplies, hire
assistance or labor, or make repairs or alterations to the real property;
and
(E) manage and supervise an
interest in real property, including the mineral estate[, by, for
example:
[(i) entering into a
lease for oil, gas, and mineral purposes;
[(ii) making contracts
for development of the mineral estate; or
[(iii) making pooling and
unitization agreements];
(5) use, develop, alter,
replace, remove, erect, or install structures or other improvements on real
property in which the principal has or claims to have an estate, interest,
or right;
(6) participate in a
reorganization with respect to real property or a legal entity that owns an
interest in or right incident to real property, receive and hold shares of
stock or obligations received in a plan or reorganization, and act with
respect to the shares or obligations, including:
(A) selling or otherwise
disposing of the shares or obligations;
(B) exercising or selling an
option, conversion, or similar right with respect to the shares or
obligations; and
(C) voting the shares or
obligations in person or by proxy;
(7) change the form of title
of an interest in or right incident to real property; [and]
(8) dedicate easements or
other real property in which the principal has or claims to have an
interest to public use, with or without consideration;
(9) enter into mineral
transactions, including:
(A) negotiating and
making oil, gas, and other mineral leases covering any land, mineral, or
royalty interest in which the principal has or claims to have an interest;
(B) pooling and unitizing
all or part of the principal's land, mineral leasehold, mineral, royalty,
or other interest with land, mineral leasehold, mineral, royalty, or other
interest of one or more persons for the purpose of developing and producing
oil, gas, or other minerals, and making leases or assignments granting the
right to pool and unitize;
(C) entering into
contracts and agreements concerning the installation and operation of
plants or other facilities for the cycling, repressuring, processing, or
other treating or handling of oil, gas, or other minerals;
(D) conducting or
contracting for the conducting of seismic evaluation operations;
(E) drilling or
contracting for the drilling of wells for oil, gas, or other minerals;
(F) contracting for and
making "dry hole" and "bottom hole" contributions of
cash, leasehold interests, or other interests toward the drilling of wells;
(G) using or contracting
for the use of any method of secondary or tertiary recovery of any mineral,
including the injection of water, gas, air, or other substances;
(H) purchasing oil, gas,
or other mineral leases, leasehold interests, or other interests for any
type of consideration, including farmout agreements requiring the drilling
or reworking of wells or participation therein;
(I) entering into farmout
agreements committing the principal to assign oil, gas, or other mineral
leases or interests in consideration for the drilling of wells or other
oil, gas, or mineral operations;
(J) negotiating the
transfer of and transferring oil, gas, or other mineral leases or interests
for any consideration, such as retained overriding royalty interests of any
nature, drilling or reworking commitments, or production interests; and
(K) executing and
entering into contracts, conveyances, and other agreements or transfers
considered necessary or desirable to carry out the powers granted in this
section, regardless of whether the action is now or subsequently recognized
or considered as a common or proper practice by those engaged in the
business of prospecting for, developing, producing, processing,
transporting, or marketing minerals, including entering into and executing
division orders, oil, gas, or other mineral sales contracts, exploration
agreements, processing agreements, and other contracts relating to the
processing, handling, treating, transporting, and marketing of oil, gas, or
other mineral production from or accruing to the principal and receiving
and receipting for the proceeds thereof on behalf of the principal; and
(10) designate the
property that constitutes the principal's homestead.
(b) The power to mortgage
and encumber real property provided by this section includes the power to
execute documents necessary to create a lien against the principal's
homestead as provided by Section 50, Article XVI, Texas Constitution, and
to consent to the creation of a lien against property
owned by the principal's spouse in which the principal has a homestead
interest.
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SECTION 1.14. Section
752.108(b), Estates Code, is amended.
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SECTION 1.15. Same as
introduced version.
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SECTION 1.15. Sections
752.109 and 752.111, Estates Code, are amended.
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SECTION 1.16. Same as
introduced version.
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SECTION 1.16. Section
752.113(c), Estates Code, is amended to read as follows:
No
equivalent provision.
(c) Unless the principal
has expressly granted the authority to create or change a beneficiary
designation under Section 751.201(a)(4), an [An] attorney in
fact or agent may be named a beneficiary under a retirement plan only to
the extent the attorney in fact or agent was a named beneficiary under the
retirement plan before the durable power of attorney was executed.
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SECTION 1.17. Sections
752.113(b) and (c), Estates Code, are amended to read as follows:
(b) The language conferring
authority with respect to retirement plan transactions in a statutory
durable power of attorney empowers the attorney in fact or agent to perform
any lawful act the principal may perform with respect to a transaction
relating to a retirement plan, including to:
(1) apply for service or
disability retirement benefits;
(2) select payment options
under any retirement plan in which the principal participates, including
plans for self-employed individuals;
(3) designate or change the
designation of a beneficiary or benefits payable by a retirement plan,
except as provided by Subsection (c);
(4) make voluntary
contributions to retirement plans if authorized by the plan;
(5) exercise the investment
powers available under any self-directed retirement plan;
(6) make rollovers of plan
benefits into other retirement plans;
(7) borrow from, sell assets
to, and purchase assets from retirement plans if authorized by the plan;
(8) waive the principal's
right to be a beneficiary of a joint or survivor annuity if the principal
is not the participant in the retirement plan providing those payments
[a spouse who is not employed];
(9) receive, endorse, and
cash payments from a retirement plan;
(10) waive the principal's
right to receive all or a portion of benefits payable by a retirement plan;
and
(11) request and receive
information relating to the principal from retirement plan records.
(c) Unless the principal
has expressly granted the authority to create or change a beneficiary
designation under Section 751.201(a)(4), an [An] attorney in
fact or agent may be named a beneficiary under a retirement plan only to
the extent the attorney in fact or agent was a named beneficiary under the
retirement plan, or in the case of a
rollover or trustee-to-trustee transfer, the predecessor retirement plan,
before the durable power of attorney was executed.
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SECTION 1.17. The changes in
law made by this Act to Subchapters B, C, and D, Chapter 751, Estates Code,
and by Subchapter E, Chapter 751, Estates
Code, as added by this Act, apply to a durable power of attorney,
including a statutory durable power of attorney, executed on or after the
effective date of this Act. A durable power of attorney, including a
statutory durable power of attorney executed before the effective date of
this Act, is governed by the law as it existed on the date the durable
power of attorney was executed, and the former law is continued in effect
for that purpose.
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SECTION 1.18. The changes in
law made by this Act to Subchapters B, C, and D, Chapter 751, Estates Code,
and by Subchapters B-1 and E, Chapter 751,
Estates Code, as added by this Act, apply to a durable power of
attorney, including a statutory durable power of attorney, executed on or
after the effective date of this Act. A durable power of attorney,
including a statutory durable power of attorney, executed before the
effective date of this Act is governed by the law as it existed on the date
the durable power of attorney was executed, and the former law is continued
in effect for that purpose.
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SECTION 1.18. (a) Except as
otherwise provided by this Act, this Act applies to:
(1) a durable power of
attorney created before, on, or after the effective date of this Act;
(2) a judicial proceeding
concerning a durable power of attorney commenced on or after the effective
date of this Act; and
(3) a judicial proceeding
concerning a durable power of attorney commenced before the effective date
of this Act that is pending.
(b) If the court finds that
application of a provision of this Act would substantially interfere with
the effective conduct of a judicial proceeding concerning a durable power
of attorney commenced before the effective date of this Act or would
prejudice the rights of a party to the proceeding, the provision of this
Act does not apply and the former law applies in those circumstances.
(c) An act performed before
the effective date of this Act is not affected by this Act.
(d) Section 751.012, Estates
Code, as added by this Act, applies to a durable power of attorney
executed on or after the effective date of this Act.
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SECTION 1.19. Same as
introduced version.
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SECTION 1.19. The following
sections of Title 2, Estates Code, are repealed:
(1) Section 751.004;
(2) Section 751.053;
(3) Section 751.054;
(4) Section 751.055;
(5) Section 751.056; and
(6) Section 751.058.
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SECTION 1.20. Same as
introduced version.
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ARTICLE 2. ADVANCE
DIRECTIVES
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ARTICLE 2. ADVANCE
DIRECTIVES
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SECTION 2.01. Sections
166.002(4) and (8), Health and Safety Code, are amended to read as follows:
(4) "Competent"
means possessing the ability, based on the attending physician's opinion
[reasonable medical judgment], to understand and appreciate the
nature and consequences of a treatment decision, including the significant
benefits and harms of and reasonable alternatives to a proposed treatment
decision.
(8) "Incompetent"
means lacking the ability, based on the attending physician's opinion
[reasonable medical judgment], to understand and appreciate the
nature and consequences of a treatment decision, including the significant
benefits and harms of and reasonable alternatives to a proposed treatment
decision.
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No
equivalent provision.
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SECTION 2.02. Section
166.003, Health and Safety Code, is amended.
|
SECTION 2.01. Same as introduced
version.
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SECTION 2.03. Section
166.033, Health and Safety Code, is amended to read as follows:
Sec. 166.033. FORM OF
WRITTEN DIRECTIVE. A written directive may be in the following form:
DIRECTIVE TO PHYSICIANS AND
FAMILY OR SURROGATES
Instructions for completing
this document:
This is an important legal
document known as an Advance Directive. It is designed to help you
communicate your wishes about medical treatment at some time in the future
when you are unable to make your wishes known because of illness or
injury. These wishes are usually based on personal values. In particular,
you may want to consider what burdens or hardships of treatment you would
be willing to accept for a particular amount of benefit obtained if you
were seriously ill.
You are encouraged to discuss
your values and wishes with your family or chosen spokesperson, as well as
your physician. Your physician, other health care provider, or medical
institution may provide you with various resources to assist you in
completing your advance directive. Brief definitions are listed below and
may aid you in your discussions and advance planning. Initial the
treatment choices that best reflect your personal preferences. Provide a
copy of your directive to your physician, usual hospital, and family or
spokesperson. Consider a periodic review of this document. By periodic
review, you can best assure that the directive reflects your preferences.
In addition to this advance
directive, Texas law provides for two other types of directives that can be
important during a serious illness. These are the Medical Power of
Attorney and the Out-of-Hospital Do-Not-Resuscitate Order. You may wish to
discuss these with your physician, family, hospital representative, or
other advisers. You may also wish to complete a directive related to the
donation of organs and tissues.
DIRECTIVE
I, __________, recognize that
the best health care is based upon a partnership of trust and communication
with my physician. My physician and I will make health care decisions
together as long as I am of sound mind and able to make my wishes known.
If there comes a time that I am unable to make medical decisions about
myself because of illness or injury, I direct that the following treatment
preferences be honored:
If, in the judgment of my
physician, I am suffering with a terminal condition from which I am
expected to die within six months, even with available life-sustaining
treatment provided in accordance with prevailing standards of medical care:
__________ I request that
all treatments other than those needed to keep me comfortable be
discontinued or withheld and my physician allow me to die as gently as
possible; OR
__________ I request that
I be kept alive in this terminal condition using available life-sustaining
treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
If, in the judgment of my
physician, I am suffering with an irreversible condition so that I cannot
care for myself or make decisions for myself and am expected to die without
life-sustaining treatment provided in accordance with prevailing standards
of care:
__________ I request that
all treatments other than those needed to keep me comfortable be
discontinued or withheld and my physician allow me to die as gently as
possible; OR
__________ I request that
I be kept alive in this irreversible condition using available
life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE
CARE.)
Additional requests: (After
discussion with your physician, you may wish to consider listing particular
treatments in this space that you do or do not want in specific
circumstances, such as artificial nutrition and fluids, intravenous
antibiotics, etc. Be sure to state whether you do or do not want the
particular treatment.)
________________________________________________________________
After signing this directive,
if my representative or I elect hospice care, I understand and agree that
only those treatments needed to keep me comfortable would be provided and I
would not be given available life-sustaining treatments.
If I do not have a Medical
Power of Attorney, and I am unable to make my wishes known, I designate the
following person(s) to make treatment decisions with my physician
compatible with my personal values:
1. __________
2. __________
(If a Medical Power of
Attorney has been executed, then an agent already has been named and you
should not list additional names in this document.)
If the above persons are not
available, or if I have not designated a spokesperson, I understand that a
spokesperson will be chosen for me following standards specified in the
laws of Texas. If, in the judgment of my physician, my death is imminent
within minutes to hours, even with the use of all available medical
treatment provided within the prevailing standard of care, I acknowledge
that all treatments may be withheld or removed except those needed to
maintain my comfort. I understand that under Texas law this directive has
no effect if I have been diagnosed as pregnant. This directive will remain
in effect until I revoke it. No other person may do so.
Signed__________
Date__________ City, County, State of Residence __________
Either a notary public or
two [Two] competent adult witnesses must sign below,
acknowledging the signature of the declarant. If this instrument is
acknowledged before two witnesses, the [The] witness designated
as Witness 1 may not be a person designated to make a treatment decision
for the patient and may not be related to the patient by blood or
marriage. This witness may not be entitled to any part of the estate and
may not have a claim against the estate of the patient. This witness may
not be the attending physician or an employee of the attending physician.
[If this witness is an employee of a health care facility in which the
patient is being cared for, this witness may not be involved in providing
direct patient care to the patient.] This witness may not be an officer, director, partner, or business office employee of a health care
facility in which the patient is being
cared for or of any parent organization of the health care facility.
SIGNATURE ACKNOWLEDGED
BEFORE NOTARY
State of Texas
County
of__________________
This instrument was
acknowledged before me on _________________ (date) by _____________________
(name of person acknowledging).
____________________
NOTARY PUBLIC, State of
Texas
Notary's printed name:
____________________
My commission expires:
____________________
OR
SIGNATURE IN PRESENCE OF
TWO COMPETENT ADULT WITNESSES
Witness 1 __________
Witness 2 __________
Definitions:
"Artificial nutrition
and hydration" means the provision of nutrients or fluids by a tube
inserted in a vein, under the skin in the subcutaneous tissues, or in the
stomach (gastrointestinal tract).
"Irreversible
condition" means a condition, injury, or illness:
(1) that may be treated, but
is never cured or eliminated;
(2) that leaves a person
unable to care for or make decisions for the person's own self; and
(3) that, without
life-sustaining treatment provided in accordance with the prevailing
standard of medical care, is fatal.
Explanation: Many serious
illnesses such as cancer, failure of major organs (kidney, heart, liver, or
lung), and serious brain disease such as Alzheimer's dementia may be
considered irreversible early on. There is no cure, but the patient may be
kept alive for prolonged periods of time if the patient receives
life-sustaining treatments. Late in the course of the same illness, the
disease may be considered terminal when, even with treatment, the patient is
expected to die. You may wish to consider which burdens of treatment you
would be willing to accept in an effort to achieve a particular outcome.
This is a very personal decision that you may wish to discuss with your
physician, family, or other important persons in your life.
"Life-sustaining
treatment" means treatment that, based on reasonable medical judgment,
sustains the life of a patient and without which the patient will die. The
term includes both life-sustaining medications and artificial life support
such as mechanical breathing machines, kidney dialysis treatment, and
artificial hydration and nutrition. The term does not include the
administration of pain management medication, the performance of a medical
procedure necessary to provide comfort care, or any other medical care
provided to alleviate a patient's pain.
"Terminal
condition" means an incurable condition caused by injury, disease, or
illness that according to reasonable medical judgment will produce death
within six months, even with available life-sustaining treatment provided
in accordance with the prevailing standard of medical care.
Explanation: Many serious
illnesses may be considered irreversible early in the course of the
illness, but they may not be considered terminal until the disease is
fairly advanced. In thinking about terminal illness and its treatment, you
again may wish to consider the relative benefits and burdens of treatment
and discuss your wishes with your physician, family, or other important
persons in your life.
|
SECTION 2.02. Section
166.033, Health and Safety Code, is amended to read as follows:
Sec. 166.033. FORM OF
WRITTEN DIRECTIVE. A written directive may be in the following form:
DIRECTIVE TO PHYSICIANS AND
FAMILY OR SURROGATES
Instructions for completing
this document:
This is an important legal
document known as an Advance Directive. It is designed to help you
communicate your wishes about medical treatment at some time in the future
when you are unable to make your wishes known because of illness or
injury. These wishes are usually based on personal values. In particular,
you may want to consider what burdens or hardships of treatment you would
be willing to accept for a particular amount of benefit obtained if you
were seriously ill.
You are encouraged to discuss
your values and wishes with your family or chosen spokesperson, as well as
your physician. Your physician, other health care provider, or medical
institution may provide you with various resources to assist you in
completing your advance directive. Brief definitions are listed below and
may aid you in your discussions and advance planning. Initial the
treatment choices that best reflect your personal preferences. Provide a
copy of your directive to your physician, usual hospital, and family or
spokesperson. Consider a periodic review of this document. By periodic
review, you can best assure that the directive reflects your preferences.
In addition to this advance
directive, Texas law provides for two other types of directives that can be
important during a serious illness. These are the Medical Power of
Attorney and the Out-of-Hospital Do-Not-Resuscitate Order. You may wish to
discuss these with your physician, family, hospital representative, or
other advisers. You may also wish to complete a directive related to the
donation of organs and tissues.
DIRECTIVE
I, __________, recognize that
the best health care is based upon a partnership of trust and communication
with my physician. My physician and I will make health care decisions together
as long as I am of sound mind and able to make my wishes known. If there
comes a time that I am unable to make medical decisions about myself
because of illness or injury, I direct that the following treatment
preferences be honored:
If, in the judgment of my
physician, I am suffering with a terminal condition from which I am
expected to die within six months, even with available life-sustaining
treatment provided in accordance with prevailing standards of medical care:
__________ I request that
all treatments other than those needed to keep me comfortable be
discontinued or withheld and my physician allow me to die as gently as
possible; OR
__________ I request that
I be kept alive in this terminal condition using available life-sustaining
treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
If, in the judgment of my
physician, I am suffering with an irreversible condition so that I cannot
care for myself or make decisions for myself and am expected to die without
life-sustaining treatment provided in accordance with prevailing standards
of care:
__________ I request that
all treatments other than those needed to keep me comfortable be
discontinued or withheld and my physician allow me to die as gently as
possible; OR
__________ I request that
I be kept alive in this irreversible condition using available
life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE
CARE.)
Additional requests: (After
discussion with your physician, you may wish to consider listing particular
treatments in this space that you do or do not want in specific
circumstances, such as artificial nutrition and fluids, intravenous
antibiotics, etc. Be sure to state whether you do or do not want the
particular treatment.)
________________________________________________________________
After signing this directive,
if my representative or I elect hospice care, I understand and agree that
only those treatments needed to keep me comfortable would be provided and I
would not be given available life-sustaining treatments.
If I do not have a Medical
Power of Attorney, and I am unable to make my wishes known, I designate the
following person(s) to make treatment decisions with my physician
compatible with my personal values:
1. __________
2. __________
(If a Medical Power of
Attorney has been executed, then an agent already has been named and you
should not list additional names in this document.)
If the above persons are not
available, or if I have not designated a spokesperson, I understand that a
spokesperson will be chosen for me following standards specified in the
laws of Texas. If, in the judgment of my physician, my death is imminent
within minutes to hours, even with the use of all available medical
treatment provided within the prevailing standard of care, I acknowledge
that all treatments may be withheld or removed except those needed to
maintain my comfort. I understand that under Texas law this directive has
no effect if I have been diagnosed as pregnant. This directive will remain
in effect until I revoke it. No other person may do so.
Signed__________
Date__________ City, County, State of Residence __________
Either a notary public or
two [Two] competent adult witnesses must sign below,
acknowledging the signature of the declarant. If this instrument is
acknowledged before two witnesses, the [The] witness designated
as Witness 1 may not be a person designated to make a treatment decision
for the patient and may not be related to the patient by blood or
marriage. This witness may not be entitled to any part of the estate and
may not have a claim against the estate of the patient. This witness may
not be the attending physician or an employee of the attending physician.
[If this witness is an employee of a health care facility in which the
patient is being cared for, this witness may not be involved in providing
direct patient care to the patient.] This witness may not be an owner, operator, [officer, director, partner,] or [business office] employee of a
health care facility in which you as the
declarant are a [the]
patient [is being cared for or of any
parent organization of the health care facility].
SIGNATURE ACKNOWLEDGED
BEFORE NOTARY
State of Texas
County
of__________________
This instrument was
acknowledged before me on _________________ (date) by _____________________
(name of person acknowledging).
____________________
NOTARY PUBLIC, State of
Texas
Notary's printed name:
____________________
My commission expires:
____________________
OR
SIGNATURE IN PRESENCE OF
TWO COMPETENT ADULT WITNESSES
Witness 1 __________
Witness 2 __________
Definitions:
"Artificial nutrition
and hydration" means the provision of nutrients or fluids by a tube
inserted in a vein, under the skin in the subcutaneous tissues, or in the
stomach (gastrointestinal tract).
"Irreversible
condition" means a condition, injury, or illness:
(1) that may be treated, but
is never cured or eliminated;
(2) that leaves a person
unable to care for or make decisions for the person's own self; and
(3) that, without
life-sustaining treatment provided in accordance with the prevailing
standard of medical care, is fatal.
Explanation: Many serious
illnesses such as cancer, failure of major organs (kidney, heart, liver, or
lung), and serious brain disease such as Alzheimer's dementia may be
considered irreversible early on. There is no cure, but the patient may be
kept alive for prolonged periods of time if the patient receives
life-sustaining treatments. Late in the course of the same illness, the
disease may be considered terminal when, even with treatment, the patient
is expected to die. You may wish to consider which burdens of treatment
you would be willing to accept in an effort to achieve a particular
outcome. This is a very personal decision that you may wish to discuss
with your physician, family, or other important persons in your life.
"Life-sustaining
treatment" means treatment that, based on reasonable medical judgment,
sustains the life of a patient and without which the patient will die. The
term includes both life-sustaining medications and artificial life support
such as mechanical breathing machines, kidney dialysis treatment, and
artificial hydration and nutrition. The term does not include the
administration of pain management medication, the performance of a medical
procedure necessary to provide comfort care, or any other medical care
provided to alleviate a patient's pain.
"Terminal
condition" means an incurable condition caused by injury, disease, or
illness that according to reasonable medical judgment will produce death
within six months, even with available life-sustaining treatment provided
in accordance with the prevailing standard of medical care.
Explanation: Many serious
illnesses may be considered irreversible early in the course of the
illness, but they may not be considered terminal until the disease is
fairly advanced. In thinking about terminal illness and its treatment, you
again may wish to consider the relative benefits and burdens of treatment
and discuss your wishes with your physician, family, or other important
persons in your life.
|
|
SECTION 2.04. Sections
166.152(b) and (g), Health and Safety Code, are amended.
|
SECTION 2.03. Same as
introduced version.
|
|
SECTION 2.05. Subchapter D,
Chapter 166, Health and Safety Code, is amended by adding Section 166.1525
to read as follows:
Sec. 166.1525.
DESIGNATION OF CO-AGENTS. A medical power of attorney may provide for
co-agents. Unless the medical power of attorney provides otherwise, each
co-agent is authorized by the principal to act independently, and third
parties may rely on the decisions of any co-agent.
|
No
equivalent provision.
|
|
SECTION 2.06. Section
166.155, Health and Safety Code, is amended to read as follows:
Sec. 166.155. REVOCATION;
EFFECT OF DIVORCE. (a) A medical power of attorney is revoked by:
(1) oral or written
notification at any time by the principal to the agent or a licensed or
certified health or residential care provider or by any other act
evidencing a specific intent to revoke the power, without regard to whether
the principal is competent or the principal's mental state; or
(2) execution by the
principal of a subsequent medical power of attorney. [; or]
(b) Divorce
[(3)
the divorce] of the principal and spouse revokes any designation in
a medical power of attorney of the divorced [, if the] spouse as
an agent [is the principal's agent,] unless the medical
power of attorney specifically provides otherwise. Divorce does not revoke the designation of other
agents listed in the medical power of attorney.
(c) [(b)] A principal's
licensed or certified health or residential care provider who is informed
of or provided with a revocation of a medical power of attorney or revocation of the designation of a divorced
spouse as an agent shall immediately record the revocation in
the principal's medical record and give notice of the revocation to the
agent and any known health and residential care providers currently
responsible for the principal's care.
|
SECTION 2.04. Section
166.155, Health and Safety Code, is amended to read as follows:
Sec. 166.155. REVOCATION;
EFFECT OF TERMINATION OF MARRIAGE. (a) A medical power of attorney is
revoked by:
(1) oral or written
notification at any time by the principal to the agent or a licensed or
certified health or residential care provider or by any other act
evidencing a specific intent to revoke the power, without regard to whether
the principal is competent or the principal's mental state; or
(2) execution by the
principal of a subsequent medical power of attorney. [; or]
(b) An agent's authority under a medical power of
attorney terminates if the agent's marriage to [
(3) the divorce of] the
principal is dissolved, annulled, or declared void [and spouse,
if the spouse is the principal's agent,] unless the
medical power of attorney specifically provides otherwise. The authority of other agents under the medical
power of attorney is not terminated.
(c) [(b)] A
principal's licensed or certified health or residential care provider who
is informed of or provided with a revocation of a medical power of attorney
or is informed of the termination of an
agent's authority under Subsection (b) shall immediately record
the revocation or termination
in the principal's medical record and give notice of the revocation or termination to the agent and any
known health and residential care providers currently responsible for the
principal's care.
|
|
SECTION 2.07. Subchapter D,
Chapter 166, Health and Safety Code, is amended.
|
SECTION 2.05. Same as
introduced version.
|
|
SECTION 2.08. Section
166.164, Health and Safety Code, is amended to read as follows:
Sec. 166.164. FORM OF
MEDICAL POWER OF ATTORNEY. The medical power of attorney may [must]
be in [substantially] the following form:
MEDICAL POWER OF ATTORNEY
DESIGNATION OF HEALTH CARE AGENT.
I, __________ (insert your
name) appoint:
Name:______________________________
Address:____________________________
Phone______________________________
as my agent to make any and
all health care decisions for me, except to the extent I state otherwise in
this document. This medical power of attorney is effective only when,
in the opinion of my attending physician, I am incompetent or I am unable
to make and communicate a choice about a particular health care decision
[takes effect if I become unable to make my own health care decisions
and this fact is certified in writing by my physician].
LIMITATIONS ON THE
DECISION-MAKING AUTHORITY OF MY AGENT ARE AS
FOLLOWS:_________________________
DESIGNATION OF ALTERNATE
AGENT.
(You are not required to
designate an alternate agent but you may do so. An alternate agent may
make the same health care decisions as the designated agent if the
designated agent is unable or unwilling to act as your agent. If the agent
designated is your spouse, the designation of that spouse is automatically
revoked by law if your marriage is
dissolved unless this document provides otherwise, but the remainder of
this document is valid.)
If the person designated as
my agent is unable or unwilling to make health care decisions for me, I
designate the following persons to serve as my agent to make health care
decisions for me as authorized by this document, who serve in the following
order:
A. First Alternate Agent
Name:______________________________
Address:____________________________
Phone______________________________
B. Second Alternate Agent
Name:______________________________
Address:____________________________
Phone______________________________
I intend to keep the [The]
original of this document [is kept] at:
___________________________________
I intend for the [The]
following individuals or institutions to have signed copies:
Name:______________________________
Address:____________________________
Name:______________________________
Address:____________________________
DURATION.
I understand that this power
of attorney exists indefinitely from the date I execute this document
unless I establish a shorter time or revoke the power of attorney.
(IF A SPECIFIC TERMINATION
DATE IS SELECTED) This power of attorney ends on the following date:
.
If I am incompetent or
unable to make and communicate health care decisions for myself when
this power of attorney expires, the authority I have granted my agent
continues to exist until the time I become able to make and communicate
health care decisions for myself.
[(IF APPLICABLE) This
power of attorney ends on the following date: __________]
PRIOR DESIGNATIONS REVOKED.
I revoke any prior medical
power of attorney.
INFORMATION CONCERNING THE
MEDICAL POWER OF ATTORNEY
The medical power of attorney
is an important legal document. Before signing this document, you should
know these important facts:
Except to the extent you
state otherwise or as provided by Texas law, this document gives the person
you name as your agent the authority to make any and all health care
decisions for you in accordance with your wishes, including your religious
and moral beliefs, when you are no longer capable of making them yourself.
Because "health
care" means any treatment, service, or procedure to maintain, diagnose,
or treat your physical or mental condition, your agent has the power to
make a broad range of health care decisions for you. Your agent may
consent, refuse to consent, or withdraw consent to medical treatment and
may make decisions about withdrawing or withholding life-sustaining
treatment. Your agent may not consent to voluntary inpatient mental health
services, convulsive treatment, psychosurgery, or abortion.
A physician must comply
with your agent's instructions or allow you to be transferred to another
physician.
Your agent's authority is
effective when, in your doctor's opinion, you are incompetent or you are
unable to make and communicate a choice about a particular health care
decision.
Your agent is obligated to
follow your instructions when making decisions on your behalf. Unless you
state otherwise, your agent, when making decisions about your health care,
has the same authority to make those decisions as you would have if you
were competent or able to communicate.
It is important that you discuss
your medical power of attorney with your physician or other health care
provider. Before you sign any medical power of attorney, make sure that
you understand the nature and range of decisions that may be made on your
behalf. If you do not have a physician, you should talk with someone else
who is knowledgeable about these issues and can answer your questions. You
do not need a lawyer's assistance to complete this document, but if there
is anything in this document that you do not understand, you should ask a
lawyer to explain it to you.
The person you appoint as
agent should be someone you know and trust. The person must be 18 years of
age or older or a person under 18 years of age who has had the disabilities
of minority removed. If you appoint your health or residential care
provider (e.g., your physician or an employee of a home health agency,
hospital, nursing home, or residential care home, other than a relative),
that person has to choose between acting as your agent or as your health or
residential care provider; the law does not permit a person to do both at
the same time.
You should inform the
person you appoint that you want the person to be your health care agent.
You should discuss your medical power of attorney with your agent and your
physician and give each a signed copy. You may indicate on the document
itself the people and institutions that you intend to have signed copies.
Your agent is not liable for health care decisions made in good faith on
your behalf.
After you have signed your
medical power of attorney, you retain the right to make health care
decisions for yourself as long as you are competent and can communicate
your health care decisions, and treatment cannot be given to you or stopped
over your objection. You have the right to revoke the authority granted to
your agent by informing your agent or your health or residential care
provider orally or in writing or by your execution of a subsequent medical
power of attorney. Unless you state otherwise, your appointment of a
spouse dissolves on divorce.
A signed medical power of
attorney may not be changed or modified. If you want to make changes in a
medical power of attorney, you must execute a new medical power of
attorney.
You may wish to designate
an alternate agent in the event that your agent is unwilling, unable, or
ineligible to act as your agent. Any alternate agent you designate has the
same authority as the agent to make health care decisions for you.
You may wish to provide for co-agents to serve. Unless your
medical power of attorney states differently, each co-agent is authorized
to act independently and third parties may rely on the decisions of either
co-agent.
THE FOLLOWING PERSONS MAY
NOT ACT AS ONE OF THE WITNESSES:
(1) the person you have
designated as your agent;
(2) a person related to
you by blood or marriage;
(3) a person entitled to
any part of your estate after your death under a will or codicil executed
by you or by operation of law;
(4) your attending
physician;
(5) an employee of your
attending physician;
(6) an owner, operator,
or employee of a health care facility in which you are a patient; or
(7) a person who, at the
time this medical power of attorney is executed, has a claim against any
part of your estate after your death.
[ACKNOWLEDGMENT OF
DISCLOSURE STATEMENT.
[I have been provided with
a disclosure statement explaining the effect of this document. I have read
and understand that information contained in the disclosure statement.]
(YOU MUST DATE AND SIGN THIS
POWER OF ATTORNEY. YOU MAY SIGN IT AND HAVE YOUR SIGNATURE ACKNOWLEDGED
BEFORE A NOTARY PUBLIC OR YOU MAY SIGN IT IN THE PRESENCE OF TWO COMPETENT
ADULT WITNESSES.)
SIGNATURE ACKNOWLEDGED BEFORE
NOTARY
I sign my name to this
medical power of attorney on __________ day of __________ (month, year) at
___________________________________
(City and State)
___________________________________
(Signature)
___________________________________
(Print Name)
State of Texas
County of ________
This instrument was
acknowledged before me on __________ (date) by ________________ (name of
person acknowledging).
_____________________________
NOTARY PUBLIC, State of Texas
Notary's printed name:
_____________________________
My commission expires:
_____________________________
OR
SIGNATURE IN PRESENCE OF TWO
COMPETENT ADULT WITNESSES
I sign my name to this
medical power of attorney on __________ day of __________ (month, year) at
___________________________________
(City and State)
___________________________________
(Signature)
___________________________________
(Print Name)
STATEMENT OF FIRST WITNESS.
I am not the person appointed
as agent by this document. I am not related to the principal by blood or
marriage. I would not be entitled to any portion of the principal's estate
on the principal's death. I am not the attending physician of the
principal or an employee of the attending physician. I have no claim
against any portion of the principal's estate on the principal's death. [Furthermore,
if] I am not an owner, operator, or employee of a health
care facility in which the principal is a patient[, I am not involved in
providing direct patient care to the principal and am not an officer,
director, partner, or business office employee of the health care facility
or of any parent organization of the health care facility].
Signature:___________________________
Print
Name:______________________________ Date:______
Address:____________________________
SIGNATURE OF SECOND WITNESS.
Signature:__________________________
Print Name:_________________________
Date:______
Address:____________________________
|
SECTION 2.06. Section
166.164, Health and Safety Code, is amended to read as follows:
Sec. 166.164. FORM OF
MEDICAL POWER OF ATTORNEY. The medical power of attorney may [must]
be in [substantially] the following form:
MEDICAL POWER OF ATTORNEY
DESIGNATION OF HEALTH CARE AGENT.
I, __________ (insert your
name) appoint:
Name:______________________________
Address:____________________________
Phone______________________________
as my agent to make any and
all health care decisions for me, except to the extent I state otherwise in
this document. This medical power of attorney is effective only when,
in the opinion of my attending physician, I am incompetent or I am unable
to make and communicate a choice about a particular health care decision
[takes effect if I become unable to make my own health care decisions
and this fact is certified in writing by my physician].
LIMITATIONS ON THE
DECISION-MAKING AUTHORITY OF MY AGENT ARE AS FOLLOWS:_________________________
DESIGNATION OF ALTERNATE
AGENT.
(You are not required to
designate an alternate agent but you may do so. An alternate agent may
make the same health care decisions as the designated agent if the
designated agent is unable or unwilling to act as your agent. If the agent
designated is your spouse, the designation of that spouse is
automatically terminated [revoked] by law if your marriage
is dissolved, annulled, or declared void
unless this document provides otherwise, but the remainder of this document
is valid and the authority of other agents
under the document is not terminated.)
If the person designated as
my agent is unable or unwilling to make health care decisions for me, I
designate the following persons to serve as my agent to make health care
decisions for me as authorized by this document, who serve in the following
order:
A. First Alternate Agent
Name:______________________________
Address:____________________________
Phone______________________________
B. Second Alternate Agent
Name:______________________________
Address:____________________________
Phone______________________________
I intend to keep the [The]
original of this document [is kept] at:
___________________________________
I intend for the [The]
following individuals or institutions to have signed copies:
Name:______________________________
Address:____________________________
Name:______________________________
Address:____________________________
DURATION.
I understand that this power
of attorney exists indefinitely from the date I execute this document
unless I establish a shorter time or revoke the power of attorney.
(IF A SPECIFIC TERMINATION
DATE IS SELECTED) This power of attorney ends on the following date: _________.
If I am incompetent or
unable to make and communicate health care decisions for myself when
this power of attorney expires, the authority I have granted my agent
continues to exist until the time I become able to make and communicate
health care decisions for myself.
[(IF APPLICABLE) This
power of attorney ends on the following date: __________]
PRIOR DESIGNATIONS REVOKED.
I revoke any prior medical
power of attorney.
INFORMATION CONCERNING THE
MEDICAL POWER OF ATTORNEY
The medical power of
attorney is an important legal document. Before signing this document, you
should know these important facts:
Except to the extent you
state otherwise or as provided by Texas law, this document gives the person
you name as your agent the authority to make any and all health care
decisions for you in accordance with your wishes, including your religious
and moral beliefs, when you are no longer capable of making them yourself.
Because "health
care" means any treatment, service, or procedure to maintain,
diagnose, or treat your physical or mental condition, your agent has the
power to make a broad range of health care decisions for you. Your agent
may consent, refuse to consent, or withdraw consent to medical treatment
and may make decisions about withdrawing or withholding life-sustaining
treatment. Your agent may not consent to voluntary inpatient mental health
services, convulsive treatment, psychosurgery, or abortion.
A physician must comply
with your agent's instructions or allow you to be transferred to another
physician.
Your agent's authority is
effective when, in your doctor's opinion, you are incompetent or you are
unable to make and communicate a choice about a particular health care
decision.
Your agent is obligated to
follow your instructions when making decisions on your behalf. Unless you
state otherwise, your agent, when making decisions about your health care,
has the same authority to make those decisions as you would have if you
were competent or able to communicate.
It is important that you
discuss your medical power of attorney with your physician or other health
care provider. Before you sign any medical power of attorney, make sure
that you understand the nature and range of decisions that may be made on
your behalf. If you do not have a physician, you should talk with someone
else who is knowledgeable about these issues and can answer your
questions. You do not need a lawyer's assistance to complete this
document, but if there is anything in this document that you do not
understand, you should ask a lawyer to explain it to you.
The person you appoint as
agent should be someone you know and trust. The person must be 18 years of
age or older or a person under 18 years of age who has had the disabilities
of minority removed. If you appoint your health or residential care
provider (e.g., your physician or an employee of a home health agency,
hospital, nursing home, or residential care home, other than a relative),
that person has to choose between acting as your agent or as your health or
residential care provider; the law does not permit a person to do both at
the same time.
You should inform the
person you appoint that you want the person to be your health care agent.
You should discuss your medical power of attorney with your agent and your
physician and give each a signed copy. You may indicate on the document
itself the people and institutions that you intend to have signed copies.
Your agent is not liable for health care decisions made in good faith on
your behalf.
After you have signed your
medical power of attorney, you retain the right to make health care
decisions for yourself as long as you are competent and can communicate
your health care decisions, and treatment cannot be given to you or stopped
over your objection. You have the right to revoke the authority granted to
your agent by informing your agent or your health or residential care
provider orally or in writing or by your execution of a subsequent medical
power of attorney. Unless you state otherwise in the document, your appointment of a spouse terminates on divorce.
A signed medical power of
attorney may not be changed or modified. If you want to make changes in a
medical power of attorney, you must execute a new medical power of
attorney.
You may wish to designate
an alternate agent in the event that your agent is unwilling, unable, or
ineligible to act as your agent. Any alternate agent you designate has the
same authority as the agent to make health care decisions for you.
THE FOLLOWING PERSONS MAY
NOT ACT AS ONE OF THE WITNESSES:
(1) the person you have
designated as your agent;
(2) a person related to
you by blood or marriage;
(3) a person entitled to
any part of your estate after your death under a will or codicil executed
by you or by operation of law;
(4) your attending
physician;
(5) an employee of your
attending physician;
(6) an owner, operator,
or employee of a health care facility in which you are a patient; or
(7) a person who, at the
time this medical power of attorney is executed, has a claim against any
part of your estate after your death.
[ACKNOWLEDGMENT OF
DISCLOSURE STATEMENT.
[I have been provided with
a disclosure statement explaining the effect of this document. I have read
and understand that information contained in the disclosure statement.]
(YOU MUST DATE AND SIGN THIS
POWER OF ATTORNEY. YOU MAY SIGN IT AND HAVE YOUR SIGNATURE ACKNOWLEDGED
BEFORE A NOTARY PUBLIC OR YOU MAY SIGN IT IN THE PRESENCE OF TWO COMPETENT
ADULT WITNESSES.)
SIGNATURE ACKNOWLEDGED BEFORE
NOTARY
I sign my name to this
medical power of attorney on __________ day of __________ (month, year) at
___________________________________
(City and State)
___________________________________
(Signature)
___________________________________
(Print Name)
State of Texas
County of ________
This instrument was
acknowledged before me on __________ (date) by ________________ (name of
person acknowledging).
_____________________________
NOTARY PUBLIC, State of Texas
Notary's printed name:
_____________________________
My commission expires:
_____________________________
OR
SIGNATURE IN PRESENCE OF TWO
COMPETENT ADULT WITNESSES
I sign my name to this
medical power of attorney on __________ day of __________ (month, year) at
___________________________________
(City and State)
___________________________________
(Signature)
___________________________________
(Print Name)
STATEMENT OF FIRST WITNESS.
I am not the person appointed
as agent by this document. I am not related to the principal by blood or
marriage. I would not be entitled to any portion of the principal's estate
on the principal's death. I am not the attending physician of the
principal or an employee of the attending physician. I have no claim
against any portion of the principal's estate on the principal's death. [Furthermore,
if] I am not an owner, operator, or employee of a health
care facility in which the principal is a patient[, I am not involved in
providing direct patient care to the principal and am not an officer,
director, partner, or business office employee of the health care facility
or of any parent organization of the health care facility].
Signature:___________________________
Print
Name:______________________________ Date:______
Address:____________________________
SIGNATURE OF SECOND WITNESS.
Signature:___________________________
Print
Name:__________________________ Date:______
Address:____________________________
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SECTION 2.09. Sections
166.162 and 166.163, Health and Safety Code, are repealed.
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SECTION 2.07. Same as
introduced version.
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SECTION 2.10. The changes in
law made by this article apply only to the validity of a document executed
on or after the effective date of this Act. The validity of a document
executed before the effective date of this Act is governed by the law in
effect on the date the document was executed, and that law continues in
effect for that purpose.
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SECTION 2.08. Same as
introduced version.
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SECTION 2.11. (a) Except as
otherwise provided in this section, the changes in law made by this article
to the Health and Safety Code apply to:
(1) a medical power of
attorney created before, on, or after the effective date of this Act; and
(2) a judicial proceeding
concerning a medical power of attorney that:
(A) commences on or after
the effective date of this Act; or
(B) is pending on the
effective date of this Act.
(b) If the court finds that
application of a provision of this article would substantially interfere
with the effective conduct of a judicial proceeding concerning a medical
power of attorney that is pending on the effective date of this Act or
prejudice the rights of a party to the proceeding, the provision of this
article does not apply, and the law in effect immediately before the
effective date of this Act applies in those circumstances.
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SECTION 2.09. Same as
introduced version.
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ARTICLE 3. EFFECTIVE DATE
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ARTICLE 3. EFFECTIVE DATE
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SECTION 3.01. This Act takes
effect September 1, 2015.
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SECTION 3.01. Same as
introduced version.
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