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INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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SECTION 1. Subchapter A,
Chapter 751, Estates Code, is amended by adding Section 751.0015 to read as
follows:
Sec. 751.0015.
APPLICABILITY OF SUBTITLE. This subtitle applies to all powers of attorney
except:
(1) a power of attorney
to the extent it is coupled with an interest in the subject of the power,
including a power of attorney given to or for the benefit of a creditor in
connection with a credit transaction;
(2) a medical power of
attorney, as defined by Section 166.002, Health and Safety Code;
(3) a proxy or other
delegation to exercise voting rights or management rights with respect to
an entity; or
(4) 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. Subchapter A,
Chapter 751, Estates Code, is amended by adding Section 751.0015 to read as
follows:
Sec. 751.0015.
APPLICABILITY OF SUBTITLE. 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 the power,
including a power of attorney given to or for the benefit of a creditor in
connection with a credit transaction;
(2) a medical power of
attorney, as defined by Section 166.002, Health and Safety Code;
(3) a proxy or other
delegation to exercise voting rights or management rights with respect to
an entity; or
(4) 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 2. Subchapter A,
Chapter 751, Estates Code, is amended by amending Section 751.002 and
adding Sections 751.0021, 751.0022, 751.0023, 751.0024, and 751.007 to read
as follows:
Sec. 751.002. DEFINITIONS
[DEFINITION OF DURABLE POWER OF ATTORNEY]. In this subtitle:
(1) "Actual
knowledge" means the knowledge of a person without that person making
any due inquiry.
(2) "Agent"
includes:
(A) an attorney in fact;
and
(B) a co-agent, successor
agent, or successor co-agent.
(3) "Durable power
of attorney" means a power of
attorney that complies with the requirements of Section 751.0021(a)
or is described by Section 751.0021(b).
(4) "Power of attorney" means a writing or other
record that grants authority to an agent to act in the place of the
principal, regardless of whether the term "power of attorney" is
used.
(5) "Principal"
means a person who signs or directs the signing of the person's name on a
power of attorney that designates an agent to act on the person's behalf.
(6) "Record"
means information that is inscribed on a tangible medium or that is stored
in an electronic or other medium and is retrievable in perceivable form.
Sec. 751.0021.
REQUIREMENTS OF DURABLE POWER OF ATTORNEY. (a) An instrument is a durable
power of attorney if the [A "durable power of attorney"
means a written] instrument [that]:
(1) is a writing or other
record;
(1-a) 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 adult directed
by the principal to sign the principal's name on the instrument;
(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 or another adult directed by the principal as authorized by
Subdivision (2) 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 751.0024
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.
Sec. 751.0022.
PRESUMPTION OF GENUINE SIGNATURE.
Sec. 751.0023. VALIDITY
OF POWER OF ATTORNEY.
Sec. 751.0024. MEANING
AND EFFECT OF DURABLE POWER OF ATTORNEY.
Sec. 751.007. CONFLICT
WITH OTHER LAW.
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SECTION 2. Subchapter A,
Chapter 751, Estates Code, is amended by amending Sections 751.002,
751.003, and 751.006 and adding Sections 751.00201, 751.0021, 751.0022,
751.0023, 751.0024, and 751.007 to read as follows:
Sec. 751.002. DEFINITIONS
[DEFINITION OF DURABLE POWER OF ATTORNEY]. In this subtitle:
(1) "Actual knowledge"
means the knowledge of a person without that person making any due inquiry,
and without any imputed knowledge,
except as expressly set forth in Section 751.211(c).
(2) "Affiliate" means a business entity that directly
or indirectly controls, is controlled by, or is under common control with
another business entity.
(3) "Agent"
includes:
(A) an attorney in fact;
and
(B) a co-agent, successor
agent, or successor co-agent.
(4) "Durable power
of attorney" means a writing or
other record that complies with the requirements of Section
751.0021(a) or is described by Section 751.0021(b).
(5) "Principal"
means an adult person who signs
or directs the signing of the person's name on a power of attorney that
designates an agent to act on the person's behalf.
(6) "Record"
means information that is inscribed on a tangible medium or that is stored
in an electronic or other medium and is retrievable in perceivable form.
Sec. 751.00201. MEANING OF DISABLED OR INCAPACITATED FOR
PURPOSES OF DURABLE POWER OF ATTORNEY. Unless otherwise defined by a
durable power of attorney, a person is considered disabled or incapacitated
for purposes of the durable power of attorney if a physician certifies in
writing at a date later than the date the durable power of attorney is
executed that, based on the physician's medical examination of the person,
the person is determined to be mentally incapable of managing the person's
financial affairs.
Sec. 751.0021.
REQUIREMENTS OF DURABLE POWER OF ATTORNEY. (a) An instrument is a durable
power of attorney for purposes of this
subtitle if the [A "durable power of attorney"
means a written] instrument [that]:
(1) is a writing or other
record that designates
another person as [attorney in fact or] agent and grants authority to that agent to act in
the place of the principal, regardless of whether the term "power of
attorney" is used;
(2) is signed by an adult
principal or in the adult principal's conscious presence by another
adult directed by the principal to sign the principal's name on the
instrument;
(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 clearly
indicate [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 or another adult directed by the principal as authorized by
Subdivision (2) 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 a jurisdiction
other than this state determines
the meaning and effect of a writing or
other record that grants authority to an agent to act in the place of the
principal, regardless of whether the term "power of attorney" is used,
and that law provides that the authority conferred on the agent is
exercisable notwithstanding the principal's subsequent disability or
incapacity, the writing or other record
is considered a durable power of attorney under this subtitle.
Sec. 751.0022.
PRESUMPTION OF GENUINE SIGNATURE.
Sec. 751.0023. VALIDITY
OF POWER OF ATTORNEY.
Sec. 751.0024. MEANING
AND EFFECT OF DURABLE POWER OF ATTORNEY.
Sec.
751.003. UNIFORMITY OF APPLICATION AND CONSTRUCTION. This subtitle shall
be applied and construed to effect the general purpose of this subtitle,
which is to make uniform to the fullest extent possible the law with
respect to the subject of this subtitle among states enacting these
provisions.
Sec.
751.006. REMEDIES UNDER OTHER LAW [RIGHTS CUMULATIVE]. The remedies
[rights set out] under this chapter [subtitle] are not
exclusive and do not abrogate any right or remedy under any law of this
state other than this chapter [cumulative of any other rights or
remedies the principal may have at common law or other applicable statutes
and are not in derogation of those rights].
Sec. 751.007. CONFLICT
WITH OTHER LAW.
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SECTION 3. Chapter 751,
Estates Code, is amended by adding Subchapters A-1 and A-2 to read as
follows:
SUBCHAPTER A-1.
APPOINTMENT OF AGENTS
Sec. 751.021. CO-AGENTS.
A principal may designate in a durable power of attorney two or more
persons to act as co-agents. Unless the power of attorney otherwise
provides, each co-agent may exercise authority independently of the other
co-agent.
Sec. 751.022. ACCEPTANCE
OF APPOINTMENT AS AGENT.
Sec. 751.023. SUCCESSOR
AGENTS.
Sec. 751.024.
REIMBURSEMENT AND COMPENSATION OF AGENT. Unless the durable power of
attorney otherwise provides or is in
conflict with another applicable agreement or instrument to which the
principal is a party, an agent is entitled to:
(1) reimbursement of
reasonable expenses incurred on the principal's behalf; and
(2) compensation that is
reasonable under the circumstances.
SUBCHAPTER A-2. AUTHORITY
OF AGENT UNDER DURABLE POWER OF ATTORNEY
Sec. 751.031. GRANTS OF
AUTHORITY IN GENERAL AND CERTAIN LIMITATIONS.
Sec. 751.032. GIFT
AUTHORITY.
Sec. 751.033. AUTHORITY
TO CREATE OR CHANGE CERTAIN BENEFICIARY DESIGNATIONS.
Sec. 751.034.
INCORPORATION OF AUTHORITY.
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SECTION 3. Chapter 751,
Estates Code, is amended by adding Subchapters A-1 and A-2 to read as
follows:
SUBCHAPTER A-1.
APPOINTMENT OF AGENTS
Sec. 751.021. CO-AGENTS.
A principal may designate in a durable power of attorney 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.
Sec. 751.022. ACCEPTANCE
OF APPOINTMENT AS AGENT.
Sec. 751.023. SUCCESSOR
AGENTS.
Sec. 751.024.
REIMBURSEMENT AND COMPENSATION OF AGENT. Unless the durable power of
attorney otherwise provides,
an agent is entitled to:
(1) reimbursement of
reasonable expenses incurred on the principal's behalf; and
(2) compensation that is
reasonable under the circumstances.
SUBCHAPTER A-2. AUTHORITY
OF AGENT UNDER DURABLE POWER OF ATTORNEY
Sec. 751.031. GRANTS OF
AUTHORITY IN GENERAL AND CERTAIN LIMITATIONS.
Sec. 751.032. GIFT
AUTHORITY.
Sec. 751.033. AUTHORITY
TO CREATE OR CHANGE CERTAIN BENEFICIARY DESIGNATIONS.
Sec. 751.034.
INCORPORATION OF AUTHORITY.
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SECTION 4. Sections 751.051,
751.057, 751.101, 751.102, 751.103, 751.104, 751.105, and 751.106, Estates
Code, are amended to read as follows:
Sec. 751.051. EFFECT OF ACTS
PERFORMED BY [ATTORNEY IN FACT OR] AGENT [DURING PRINCIPAL'S
DISABILITY OR INCAPACITY].
Sec. 751.057. EFFECT OF
BANKRUPTCY PROCEEDING.
Sec. 751.101. FIDUCIARY
DUTIES. A person who accepts appointment as an agent under a durable
power of attorney as provided by Section 751.022 [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.
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SECTION 4. Sections 751.051,
751.057, 751.101, 751.102, 751.103, 751.104, 751.105, and 751.106, Estates
Code, are amended to read as follows:
Sec. 751.051. EFFECT OF ACTS
PERFORMED BY [ATTORNEY IN FACT OR] AGENT [DURING PRINCIPAL'S
DISABILITY OR INCAPACITY].
Sec. 751.057. EFFECT OF
BANKRUPTCY PROCEEDING.
Sec. 751.101. FIDUCIARY
DUTIES. A person who accepts appointment as an agent under a durable
power of attorney as provided by Section 751.022 [An attorney in
fact or agent] is a fiduciary as
to the principal only when acting as an agent under the power of attorney
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.
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SECTION 5. Chapter 751,
Estates Code, is amended.
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SECTION 5. Same as introduced
version.
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SECTION 6. Section 751.052,
Estates Code, is transferred to Subchapter C-2, Chapter 751, Estates Code,
as added by this Act, redesignated as Section 751.133, Estates Code, and
amended to read as follows:
Sec. 751.133 [751.052].
RELATION OF [ATTORNEY IN FACT OR] AGENT TO COURT-APPOINTED GUARDIAN
OF ESTATE. (a) If, after execution of a durable power of attorney, a
court of the principal's domicile appoints a permanent guardian of the
estate of the principal, the powers of the [attorney in fact or]
agent terminate on the qualification of the guardian of the estate. The [attorney
in fact or] agent shall:
(1) deliver to the guardian
of the estate all assets of the ward's
estate that are in the possession of the [attorney in fact or]
agent; and
(2) account to the guardian
of the estate as the [attorney in fact or] agent would account to
the principal if the principal had terminated the powers of the [attorney
in fact or] agent.
(b) If, after execution of a
durable power of attorney, a court of the principal's domicile appoints a
temporary guardian of the estate of the principal, the court may suspend
the powers of the [attorney in fact or] agent on the qualification
of the temporary guardian of the estate until the date the term of the
temporary guardian expires. This subsection may not be construed to
prohibit the application for or issuance of a temporary restraining order
under applicable law.
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SECTION 6. Section 751.052,
Estates Code, is transferred to Subchapter C-2, Chapter 751, Estates Code,
as added by this Act, redesignated as Section 751.133, Estates Code, and
amended to read as follows:
Sec. 751.133 [751.052].
RELATION OF [ATTORNEY IN FACT OR] AGENT TO COURT-APPOINTED GUARDIAN
OF ESTATE. (a) If, after execution of a durable power of attorney, a
court of the principal's domicile appoints a permanent guardian of the
estate of the principal, the powers of the [attorney in fact or]
agent terminate on the qualification of the guardian of the estate. The [attorney
in fact or] agent shall:
(1) deliver to the guardian
of the estate all assets of the incapacitated
person's [ward's]
estate that are in the possession of the [attorney in fact or]
agent; and
(2) account to the guardian
of the estate as the [attorney in fact or] agent would account to
the principal if the principal had terminated the powers of the [attorney
in fact or] agent.
(b) If, after execution of a
durable power of attorney, a court of the principal's domicile appoints a
temporary guardian of the estate of the principal, the court may suspend
the powers of the [attorney in fact or] agent on the qualification
of the temporary guardian of the estate until the date the term of the
temporary guardian expires. This subsection may not be construed to
prohibit the application for or issuance of a temporary restraining order
under applicable law.
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SECTION 7. Section 751.151,
Estates Code, is amended.
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SECTION 7. Same as introduced
version.
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SECTION 8. Chapter 751,
Estates Code, is amended by adding Subchapters E and F to read as follows:
SUBCHAPTER E. ACCEPTANCE
OF AND RELIANCE ON DURABLE POWER OF ATTORNEY
Sec. 751.201. ACCEPTANCE
OF DURABLE POWER OF ATTORNEY REQUIRED; EXCEPTIONS. (a) Unless one or more
grounds for refusal under Section 751.206 exist, a person who is presented
with and asked to accept a durable power of attorney by an agent with
authority to act under the power of attorney shall:
(1) accept the power of
attorney; or
(2) before accepting the
power of attorney:
(A) request an agent's
certification under Section 751.203 or an opinion of counsel under Section
751.204 not later than the seventh
business day after the date the power of attorney is presented, except as
provided by Subsection (c); or
(B) if applicable,
request an English translation under Section 751.205 not later than the
fifth business day after the date the power of attorney is presented,
except as provided by Subsection (c).
(b) Unless one or more
grounds for refusal under Section 751.206 exist and except as provided by
Subsection (c), a person who requests
a certification or an
opinion of counsel must accept the durable power of attorney not later than
the fifth business day after the
date the person receives the requested certification or opinion.
(c) An agent presenting a
durable power of attorney for acceptance and the person to whom the power
of attorney is presented may agree to extend a period prescribed by
Subsection (a) or (b).
(d) If an English
translation of a durable power of attorney is requested as authorized by
Subsection (a)(2)(B), the power of attorney is not considered presented for
acceptance under Subsection (a) until the date the requestor receives the
translation. On and after that date, the power of attorney shall be
treated as a power of attorney originally prepared in English for all the
purposes of this subchapter.
(e) A person is not
required to accept a durable power of attorney under this section if the
agent refuses to or does not provide a requested certification, opinion of
counsel, or English translation under this subchapter.
Sec. 751.202. OTHER FORM
OR RECORDING OF DURABLE POWER OF ATTORNEY AS CONDITION OF ACCEPTANCE
PROHIBITED.
Sec. 751.203. AGENT'S
CERTIFICATION. (a) Before accepting a durable power of attorney under
Section 751.201, the person to whom the power of attorney is presented may
request that the agent presenting the power of attorney provide to the
person an agent's certification, under penalty of perjury, of any factual
matter concerning the principal, agent, or power of attorney.
(b) A certification
described by Subsection (a) 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 terminated by the
occurrence of any event, whether or not referenced in the power of
attorney;
b. A permanent guardian
of the estate of the principal has not qualified to serve in that capacity;
c. My powers under the
power of attorney have not been suspended by a court in a temporary
guardianship or other proceeding;
d. 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 has
been dissolved by court decree of divorce or annulment or declared void by
a court;
e. No proceeding has been
commenced for a temporary or permanent guardianship of the person or
estate, or both, of the principal; and
f. 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 now has a disability or is 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 qualified to serve or has declined to serve
as agent, or is otherwise unable to act. There are no unsatisfied
conditions remaining under the power of attorney that preclude my acting as
successor agent.
7. I agree not to:
a. Exercise any powers
granted by the power of attorney if I attain knowledge that the power of
attorney has been revoked, suspended, or terminated; or
b. Exercise any specific
powers that have been revoked, suspended, or terminated.
8. A true and correct
copy of the power of attorney is attached to this document.
9. If used in connection
with an extension of credit under Section 50(a)(6), Article XVI, Texas
Constitution, the power of attorney was executed in the office of the
lender, the office of a title company, or the law office of
____________________.
Date: __________, 20__.
__________________________________
(signature of agent)
(c) A certification made
in compliance with this section is conclusive proof of the factual matter
that is the subject of the certification.
Sec. 751.204. OPINION OF
COUNSEL. (a) Before accepting a durable power of attorney under Section
751.201, the person to whom the power of attorney is presented may request
from the agent presenting the power of attorney an opinion of counsel
regarding any matter of law concerning the power of attorney so long as the
person provides to the agent the reason for the request in a writing or
other record.
(b) Except as otherwise
provided in an agreement to extend the request period under Section
751.201(c), an opinion of counsel requested under this section must be
provided by the principal or agent, at the principal's expense. If,
without an extension, the requestor requests the opinion later than the seventh business day after the date the
durable power of attorney is presented to the requestor, the principal or
agent may, but is not required to, provide the opinion, at the requestor's
expense.
Sec. 751.205. ENGLISH
TRANSLATION.
Sec. 751.206. GROUNDS FOR
REFUSING ACCEPTANCE. A person is not required to accept a durable power of
attorney under this subchapter if:
(1) the person would not
otherwise be required to engage in a transaction with the principal under
the same circumstances, including a circumstance in which the agent seeks
to:
(A) establish a customer
relationship with the person under the power of attorney when the principal
is not already a customer of the person; or
(B) acquire a product or
service under the power of attorney that the person does not offer;
(2) the person's engaging
in the transaction with the agent or with the principal under the same
circumstances would be inconsistent with:
(A) another law of this
state or a federal statute, rule, or regulation;
(B) a request from a law
enforcement agency; or
(C) a policy adopted by
the person in good faith that is necessary to comply with another law of
this state or a federal statute, rule, regulation, regulatory directive,
guidance, or executive order applicable to the person;
(3) the person would not
engage in a similar transaction with the agent because the person:
(A) has filed a
suspicious activity report as described by 31 U.S.C. Section 5318(g) with
respect to the principal or agent;
(B) believes in good
faith that the principal or agent has a prior criminal history involving
financial crimes; or
(C) has had a previous,
unsatisfactory business relationship with the agent due to or resulting in:
(i) substantial loss to the person;
(ii) financial
mismanagement by the agent;
(iii) litigation between
the person and the agent alleging substantial damages; or
(iv) multiple nuisance
lawsuits filed by the agent;
(4) the person has actual
knowledge of the termination of the agent's authority or of the power of
attorney before an agent's exercise of authority under the power of
attorney;
(5) the agent refuses to
comply with a request for a certification, opinion of counsel, or
translation under Section 751.201 or, if the agent complies with one or
more of those requests, the requestor in good faith is unable to determine
the validity of the power of attorney or the agent's authority to act under
the power of attorney because the certification, opinion, or translation is
unclear, limited, or qualified in a manner that makes the certification,
opinion, or translation ineffective for its intended purpose;
(6) regardless of whether
an agent's certification, opinion of counsel, or translation has been
requested or received by the person under this subchapter, the person
believes in good faith that:
(A) the power of attorney
is not valid;
(B) the agent does not
have the authority to act as attempted; or
(C) the performance of
the requested act would violate the terms of:
(i) a business entity's
governing documents; or
(ii) an agreement
affecting a business entity, including how the entity's business is
conducted;
(7) the person commenced,
or has actual knowledge that another person commenced, a judicial
proceeding to construe the power of attorney or review the agent's conduct
and that proceeding is pending;
(8) the person commenced,
or has actual knowledge that another person commenced, a judicial
proceeding for which a final determination was made that found:
(A) the power of attorney
invalid with respect to a purpose for which the power of attorney is being
presented for acceptance; or
(B) the agent lacked the
authority to act in the same manner in which the agent is attempting to act
under the power of attorney;
(9) the person makes, has
made, 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 with or on
behalf of the agent; or
(10) the person receives
conflicting instructions or communications with regard to a matter from
co-agents acting under the same power of attorney or from agents acting
under different powers of attorney signed by the same principal or another
adult acting for the principal as authorized by Section 751.0021, provided
that the person may refuse to accept the power of attorney only with
respect to that matter.
Sec. 751.207. WRITTEN
STATEMENT OF REFUSAL OF ACCEPTANCE REQUIRED. (a) Except as provided by
Subsection (b), a person who refuses to accept a durable power of attorney
under this subchapter shall provide to the agent presenting the power of
attorney for acceptance a written statement advising the agent of the
reason or reasons the person is refusing to accept the power of attorney.
(b) If the reason a
person is refusing to accept a durable power of attorney is a reason
described by Section 751.206(2) or (3),
the person shall provide
to the agent presenting the power of attorney for acceptance a written
statement signed by the person under penalty of perjury stating that the
reason for the refusal is a reason described by Section 751.206(2) or (3).
(c) The person must
provide to the agent the written statement required under Subsection (a) or
(b) on or before the date the person would otherwise be required to accept
the durable power of attorney under Section 751.201.
Sec. 751.208. DATE OF
ACCEPTANCE.
Sec. 751.209. GOOD FAITH
RELIANCE ON POWER OF ATTORNEY.
Sec. 751.210. RELIANCE ON
CERTAIN REQUESTED INFORMATION.
Sec. 751.211. ACTUAL
KNOWLEDGE OF PERSON WHEN TRANSACTIONS CONDUCTED THROUGH EMPLOYEES. (a)
This section applies to a person who conducts a transaction or activity
through an employee of the person.
(b) For purposes of this subchapter, a person is not considered
to have actual knowledge of a fact relating to a durable power of attorney,
principal, or agent if the employee conducting the transaction or activity
involving the power of attorney does not have actual knowledge of the fact.
Sec. 751.212. CAUSE OF
ACTION FOR REFUSAL TO ACCEPT DURABLE POWER OF ATTORNEY. (a) The principal
or an agent acting on the principal's behalf may bring an action against a
person who refuses to accept a durable power of attorney in violation of
this subchapter.
(b) An action under
Subsection (a) may not be commenced against a person until after the date
the person is required to accept the durable power of attorney under
Section 751.201.
(c) If the court finds
that the person refused to accept the durable power of attorney in
violation of this subchapter, the court shall:
(1) order the person to
accept the power of attorney; and
(2) award the plaintiff
court costs and reasonable and necessary attorney's fees.
(d) The court shall
dismiss an action under this section that was commenced after the date a
written statement described by Section 751.207(b) was provided to the
agent.
(e) Notwithstanding
Subsection (c), if the agent receives a written statement described by
Section 751.207(b) after the date a timely action is commenced under this
section, the court may not order the person to accept the durable power of
attorney, but instead may award the plaintiff court costs and reasonable
and necessary attorney's fees.
Sec. 751.213. LIABILITY
OF PRINCIPAL. In an action under Section 751.212, the principal may be
liable to the person who refused to accept the durable power of attorney
for court costs and reasonable and necessary attorney's fees incurred in defending
the action if the court:
(1) finds that the action
was commenced after the date the written statement described by Section
751.207(b) was timely provided to the agent;
(2) expressly finds that
the person's refusal to accept the power of attorney was permitted under Section 751.206; or
(3) if Section 751.212(e)
does not apply, does not issue an order ordering the person to accept the
power of attorney.
SUBCHAPTER F. CIVIL
REMEDIES
Sec. 751.251. JUDICIAL
RELIEF. (a) The following may bring an action requesting a court to
construe
a durable power of
attorney, or to review an agent's conduct under a durable power of attorney
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 property, a benefit, or a contractual right on the
principal's death;
(4) a governmental agency
with regulatory authority to protect the principal's welfare; and
(5) a person who
demonstrates to the court sufficient interest in the principal's welfare or
estate.
(b) A person who is asked
to accept a durable power of attorney may bring an action requesting a
court to construe the power of attorney.
(c) On the principal's
motion, the court shall dismiss an action under Subsection (a) unless the
court finds that the principal lacks capacity to revoke the agent's
authority or the durable power of attorney.
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SECTION 8. Chapter 751,
Estates Code, is amended by adding Subchapters E and F to read as follows:
SUBCHAPTER E. ACCEPTANCE
OF AND RELIANCE ON DURABLE POWER OF ATTORNEY
Sec. 751.201. ACCEPTANCE
OF DURABLE POWER OF ATTORNEY REQUIRED; EXCEPTIONS. (a) Unless one or more
grounds for refusal under Section 751.206 exist, a person who is presented
with and asked to accept a durable power of attorney by an agent with
authority to act under the power of attorney shall:
(1) accept the power of
attorney; or
(2) before accepting the
power of attorney:
(A) request an agent's
certification under Section 751.203 or an opinion of counsel under Section
751.204 not later than the 10th
business day after the date the power of attorney is presented, except as
provided by Subsection (c); or
(B) if applicable,
request an English translation under Section 751.205 not later than the
fifth business day after the date the power of attorney is presented,
except as provided by Subsection (c).
(b) Unless one or more grounds
for refusal under Section 751.206 exist and except as provided by
Subsection (c), a person who requests:
(1) an agent's certification must accept the
durable power of attorney not later than the seventh
business day after the date the person receives the requested
certification; and
(2) an opinion of counsel
must accept the durable power of attorney not later than the seventh business day after the date the
person receives the requested opinion.
(c) An agent presenting a
durable power of attorney for acceptance and the person to whom the power
of attorney is presented may agree to extend a period prescribed by
Subsection (a) or (b).
(d) If an English
translation of a durable power of attorney is requested as authorized by
Subsection (a)(2)(B), the power of attorney is not considered presented for
acceptance under Subsection (a) until the date the requestor receives the
translation. On and after that date, the power of attorney shall be
treated as a power of attorney originally prepared in English for all the
purposes of this subchapter.
(e) A person is not
required to accept a durable power of attorney under this section if the
agent refuses to or does not provide a requested certification, opinion of
counsel, or English translation under this subchapter.
Sec. 751.202. OTHER FORM
OR RECORDING OF DURABLE POWER OF ATTORNEY AS CONDITION OF ACCEPTANCE
PROHIBITED.
Sec. 751.203. AGENT'S
CERTIFICATION. (a) Before accepting a durable power of attorney under
Section 751.201, the person to whom the power of attorney is presented may
request that the agent presenting the power of attorney provide to the
person an agent's certification, under penalty of perjury, of any factual
matter concerning the principal, agent, or power of attorney.
(b) A certification
described by Subsection (a) may be in the following form:
CERTIFICATION OF DURABLE 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 terminated by the
occurrence of any event, whether or not referenced in the power of
attorney;
b. A permanent guardian of
the estate of the principal has not qualified to serve in that capacity;
c. My powers under the
power of attorney have not been suspended by a court in a temporary
guardianship or other proceeding;
d. 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 has
been dissolved by court decree of divorce or annulment or declared void by
a court;
e. No proceeding has been
commenced for a temporary or permanent guardianship of the person or
estate, or both, of the principal; and
f. 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 now has a disability or is 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 qualified to serve or has declined to serve
as agent, or is otherwise unable to act. There are no unsatisfied
conditions remaining under the power of attorney that preclude my acting as
successor agent.
7. I agree not to:
a. Exercise any powers
granted by the power of attorney if I attain knowledge that the power of
attorney has been revoked, suspended, or terminated; or
b. Exercise any specific
powers that have been revoked, suspended, or terminated.
8. A true and correct
copy of the power of attorney is attached to this document.
9. If used in connection
with an extension of credit under Section 50(a)(6), Article XVI, Texas
Constitution, the power of attorney was executed in the office of the
lender, the office of a title company, or the law office of
____________________.
Date: __________, 20__.
__________________________________
(signature of agent)
(c) A certification made
in compliance with this section is conclusive proof of the factual matter
that is the subject of the certification.
Sec. 751.204. OPINION OF
COUNSEL. (a) Before accepting a durable power of attorney under Section
751.201, the person to whom the power of attorney is presented may request
from the agent presenting the power of attorney an opinion of counsel
regarding any matter of law concerning the power of attorney so long as the
person provides to the agent the reason for the request in a writing or
other record.
(b) Except as otherwise
provided in an agreement to extend the request period under Section
751.201(c), an opinion of counsel requested under this section must be
provided by the principal or agent, at the principal's expense. If,
without an extension, the requestor requests the opinion later than the 10th business day after the date the
durable power of attorney is presented to the requestor, the principal or
agent may, but is not required to, provide the opinion, at the requestor's
expense.
Sec. 751.205. ENGLISH
TRANSLATION.
Sec. 751.206. GROUNDS FOR
REFUSING ACCEPTANCE. A person is not required to accept a durable power of
attorney under this subchapter if:
(1) the person would not
otherwise be required to engage in a transaction with the principal under
the same circumstances, including a circumstance in which the agent seeks
to:
(A) establish a customer
relationship with the person under the power of attorney when the principal
is not already a customer of the person or
expand an existing customer relationship with the person under the power of
attorney; or
(B) acquire a product or
service under the power of attorney that the person does not offer;
(2) the person's engaging
in the transaction with the agent or with the principal under the same
circumstances would be inconsistent with:
(A) another law of this
state or a federal statute, rule, or regulation;
(B) a request from a law
enforcement agency; or
(C) a policy adopted by
the person in good faith that is necessary to comply with another law of
this state or a federal statute, rule, regulation, regulatory directive,
guidance, or executive order applicable to the person;
(3) the person would not
engage in a similar transaction with the agent because the person or an affiliate of the person:
(A) has filed a suspicious
activity report as described by 31 U.S.C. Section 5318(g) with respect to
the principal or agent;
(B) believes in good
faith that the principal or agent has a prior criminal history involving
financial crimes; or
(C) has had a previous,
unsatisfactory business relationship with the agent due to or resulting in:
(i) material loss to the person;
(ii) financial
mismanagement by the agent;
(iii) litigation between
the person and the agent alleging substantial damages; or
(iv) multiple nuisance lawsuits
filed by the agent;
(4) the person has actual
knowledge of the termination of the agent's authority or of the power of
attorney before an agent's exercise of authority under the power of
attorney;
(5) the agent refuses to
comply with a request for a certification, opinion of counsel, or
translation under Section 751.201 or, if the agent complies with one or
more of those requests, the requestor in good faith is unable to determine
the validity of the power of attorney or the agent's authority to act under
the power of attorney because the certification, opinion, or translation is
incorrect, incomplete, unclear,
limited, qualified, or otherwise
deficient in a manner that makes the certification, opinion, or
translation ineffective for its intended purpose, as determined in good faith by the requestor;
(6) regardless of whether
an agent's certification, opinion of counsel, or translation has been
requested or received by the person under this subchapter, the person
believes in good faith that:
(A) the power of attorney
is not valid;
(B) the agent does not
have the authority to act as attempted; or
(C) the performance of
the requested act would violate the terms of:
(i) a business entity's
governing documents; or
(ii) an agreement
affecting a business entity, including how the entity's business is
conducted;
(7) the person commenced,
or has actual knowledge that another person commenced, a judicial
proceeding to construe the power of attorney or review the agent's conduct
and that proceeding is pending;
(8) the person commenced,
or has actual knowledge that another person commenced, a judicial
proceeding for which a final determination was made that found:
(A) the power of attorney
invalid with respect to a purpose for which the power of attorney is being
presented for acceptance; or
(B) the agent lacked the
authority to act in the same manner in which the agent is attempting to act
under the power of attorney;
(9) the person makes, has
made, 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 with or on
behalf of the agent;
(10) the person receives
conflicting instructions or communications with regard to a matter from
co-agents acting under the same power of attorney or from agents acting
under different powers of attorney signed by the same principal or another
adult acting for the principal as authorized by Section 751.0021, provided
that the person may refuse to accept the power of attorney only with respect
to that matter; or
(11) the person is not required to accept the durable power of
attorney by the law of the jurisdiction that applies in determining the
power of attorney's meaning and effect, or the powers conferred under the
durable power of attorney that the agent is attempting to exercise are not
included within the scope of activities to which the law of that
jurisdiction applies.
Sec. 751.207. WRITTEN
STATEMENT OF REFUSAL OF ACCEPTANCE REQUIRED. (a) Except as provided by
Subsection (b), a person who refuses to accept a durable power of attorney
under this subchapter shall provide to the agent presenting the power of
attorney for acceptance a written statement advising the agent of the
reason or reasons the person is refusing to accept the power of attorney.
(b) If the reason a
person is refusing to accept a durable power of attorney is a reason
described by Section 751.206(2) or (3):
(1) the person shall
provide to the agent presenting the power of attorney for acceptance a
written statement signed by the person under penalty of perjury stating
that the reason for the refusal is a reason described by Section 751.206(2)
or (3); and
(2) the person refusing to accept the power of attorney is not
required to provide any additional explanation for refusing to accept the
power of attorney.
(c) The person must
provide to the agent the written statement required under Subsection (a) or
(b) on or before the date the person would otherwise be required to accept
the durable power of attorney under Section 751.201.
Sec. 751.208. DATE OF
ACCEPTANCE.
Sec. 751.209. GOOD FAITH
RELIANCE ON DURABLE POWER OF
ATTORNEY.
Sec. 751.210. RELIANCE ON
CERTAIN REQUESTED INFORMATION.
Sec. 751.211. ACTUAL
KNOWLEDGE OF PERSON WHEN TRANSACTIONS CONDUCTED THROUGH EMPLOYEES. (a)
This section applies to a person who conducts a transaction or activity
through an employee of the person.
(b) For purposes of this chapter, a person is not considered to
have actual knowledge of a fact relating to a durable power of attorney,
principal, or agent if the employee conducting the transaction or activity
involving the power of attorney does not have actual knowledge of the fact.
(c) For purposes of this chapter, a person is considered to
have actual knowledge of a fact relating to a durable power of attorney,
principal, or agent if the employee conducting the transaction or activity
involving the power of attorney has actual knowledge of the fact.
Sec. 751.212. CAUSE OF
ACTION FOR REFUSAL TO ACCEPT DURABLE POWER OF ATTORNEY. (a) The principal
or an agent acting on the principal's behalf may bring an action against a
person who refuses to accept a durable power of attorney in violation of
this subchapter.
(b) An action under
Subsection (a) may not be commenced against a person until after the date
the person is required to accept the durable power of attorney under
Section 751.201.
(c) If the court finds
that the person refused to accept the durable power of attorney in
violation of this subchapter, the court, as
the exclusive remedy under this chapter:
(1) shall order the
person to accept the power of attorney; and
(2) may award the plaintiff court costs and
reasonable and necessary attorney's fees.
(d) The court shall
dismiss an action under this section that was commenced after the date a
written statement described by Section 751.207(b) was provided to the
agent.
(e) Notwithstanding
Subsection (c), if the agent receives a written statement described by
Section 751.207(b) after the date a timely action is commenced under this
section, the court may not order the person to accept the durable power of
attorney, but instead may award the plaintiff court costs and reasonable
and necessary attorney's fees as the
exclusive remedy under this chapter.
Sec. 751.213. LIABILITY
OF PRINCIPAL. (a) Subsection (b) applies to an action brought under
Section 751.212 if:
(1) the court finds that
the action was commenced after the date the written statement described by
Section 751.207(b) was timely provided to the agent;
(2) the court expressly
finds that the refusal of the person against whom the action was brought to
accept the durable power of attorney was permitted under this chapter; or
(3) Section 751.212(e)
does not apply and the court does not issue an order ordering the person to
accept the power of attorney.
(b) Under any of the circumstances described by
Subsection (a), the principal may be liable to the person who
refused to accept the durable power of attorney for court costs and
reasonable and necessary attorney's fees incurred in defending the action as the exclusive remedy under this chapter.
SUBCHAPTER F. CIVIL
REMEDIES
Sec. 751.251. JUDICIAL
RELIEF. (a) The following may bring an action requesting a court to
construe, or determine the validity or
enforceability of, a durable power of attorney, or to review an
agent's conduct under a durable power of attorney 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 property, a benefit, or a contractual right on the
principal's death;
(4) a governmental agency
with regulatory authority to protect the principal's welfare; and
(5) a person who
demonstrates to the court sufficient interest in the principal's welfare or
estate.
(b) A person who is asked
to accept a durable power of attorney may bring an action requesting a
court to construe, or determine the
validity or enforceability of, the power of attorney.
(c) On the principal's
motion, the court shall dismiss an action under Subsection (a) unless the
court finds that the principal lacks capacity to revoke the agent's
authority or the durable power of attorney.
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SECTION 9. 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. IF YOU WANT YOUR AGENT TO HAVE THE AUTHORITY TO SIGN HOME EQUITY
LOAN DOCUMENTS ON YOUR BEHALF, THIS POWER OF ATTORNEY MUST BE SIGNED BY YOU
AT THE OFFICE OF THE LENDER, AN ATTORNEY AT LAW, OR A TITLE COMPANY.
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 agent compensation (initial in front of one of the following
sentences to have it apply; if no selection is made, each agent will be
entitled to compensation that is reasonable under the circumstances):
____ My agent is entitled
to reimbursement of reasonable expenses incurred on my behalf and to
compensation that is reasonable under the circumstances.
____ My agent is entitled
to reimbursement of reasonable expenses incurred on my behalf but shall
receive no compensation for serving as my agent.
Special instructions
applicable to co-agents (if you have appointed co-agents to act, initial in
front of one of the following sentences to have it apply; if no selection
is made, each agent will be entitled to act independently):
____ Each of my co-agents
may act independently for me.
____ My co-agents may act
for me only if the co-agents act jointly.
____ My co-agents may act
for me only if a majority of the co-agents act jointly.
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 has actual
knowledge [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 incapacitated [legally disabled], resigns, or
refuses to act, or if my marriage to an agent named by me is dissolved
by a 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 a 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 9. 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. IF YOU WANT YOUR AGENT TO HAVE THE AUTHORITY TO SIGN HOME EQUITY
LOAN DOCUMENTS ON YOUR BEHALF, THIS POWER OF ATTORNEY MUST BE SIGNED BY YOU
AT THE OFFICE OF THE LENDER, AN ATTORNEY AT LAW, OR A TITLE COMPANY.
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 agent compensation (initial in front of one of the following
sentences to have it apply; if no selection is made, each agent will be
entitled to compensation that is reasonable under the circumstances):
____ My agent is entitled
to reimbursement of reasonable expenses incurred on my behalf and to
compensation that is reasonable under the circumstances.
____ My agent is entitled
to reimbursement of reasonable expenses incurred on my behalf but shall
receive no compensation for serving as my agent.
Special instructions
applicable to co-agents (if you have appointed co-agents to act, initial in
front of one of the following sentences to have it apply; if no selection
is made, each agent will be entitled to act independently):
____ Each of my co-agents
may act independently for me.
____ My co-agents may act
for me only if the co-agents act jointly.
____ My co-agents may act
for me only if a majority of the co-agents act jointly.
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 has actual
knowledge [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. The meaning and effect of this durable power
of attorney is determined by Texas law.
If any agent named by me
dies, becomes incapacitated [legally disabled], resigns, or
refuses to act, or if my marriage to an agent named by me is dissolved
by a 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 a 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 10. Subchapter B,
Chapter 752, Estates Code, is amended.
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SECTION 10. Same as
introduced version.
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SECTION 11. 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 in the drilling or reworking of
wells;
(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;
(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, 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
of those contracts, conveyances, and other agreements and transfers on
behalf of the principal; and
(L) taking an action
described by Paragraph (K) regardless of whether the action is, at the time
the action is taken 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; 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 11. 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 in the drilling or reworking of
wells;
(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;
(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, 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 of those contracts, conveyances, and other agreements and
transfers on behalf of the principal; and
(L) taking an action described
by Paragraph (K) regardless of whether the action is, at the time the
action is taken 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; 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 12. Section 752.108(b),
Estates Code, is amended to read as follows:
(b) Unless the principal
has granted the authority to create or change a beneficiary designation
expressly as required by Section 751.031(b)(4), an [An] attorney in fact or agent may be named
a beneficiary of an insurance contract or an extension, renewal, or
substitute for the contract only to the extent the attorney in fact or agent was named as a beneficiary [under
a contract procured] by the principal [before executing the power of
attorney].
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SECTION 12. Section
752.108(b), Estates Code, is amended to read as follows:
(b) Unless the principal
has granted the authority to create or change a beneficiary designation
expressly as required by Section 751.031(b)(4), an [An attorney in fact or] agent
may be named a beneficiary of an insurance contract or an extension,
renewal, or substitute for the contract only to the extent the [attorney in fact or] agent was
named as a beneficiary [under a contract procured] by the principal
[before executing the power of attorney].
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|
SECTION 13. Sections 752.109
and 752.111, Estates Code, are amended to read as follows:
Sec. 752.109. ESTATE, TRUST,
AND OTHER BENEFICIARY TRANSACTIONS. The language conferring authority with
respect to estate, trust, and other beneficiary transactions in a statutory
durable power of attorney empowers the attorney
in fact or agent to act for the principal in all matters that affect
a trust, probate estate, guardianship, conservatorship, life estate,
escrow, custodianship, or other fund from which the principal is, may
become, or claims to be entitled, as a beneficiary, to a share or payment,
including to:
(1) accept, reject,
disclaim, receive, receipt for, sell, assign, release, pledge, exchange, or
consent to a reduction in or modification of a share in or payment from the
fund;
(2) demand or obtain by
litigation, action, or otherwise money or any other thing of value to which
the principal is, may become, or claims to be entitled because of the fund;
(3) initiate, participate
in, or oppose a legal or judicial proceeding to:
(A) ascertain the meaning,
validity, or effect of a deed, will, declaration of trust, or other
instrument or transaction affecting the interest of the principal; or
(B) remove, substitute, or
surcharge a fiduciary;
(4) conserve, invest,
disburse, or use anything received for an authorized purpose; and
(5) transfer all or part of
the principal's interest in real property, stocks, bonds, accounts with
financial institutions, insurance, and other property to the trustee of a
revocable trust created by the principal as settlor.
Sec. 752.111. PERSONAL AND
FAMILY MAINTENANCE. The language conferring authority with respect to
personal and family maintenance in a statutory durable power of attorney
empowers the attorney in fact or
agent to:
(1) perform the acts
necessary to maintain the customary standard of living of the principal,
the principal's spouse and children, and other individuals customarily or
legally entitled to be supported by the principal, including:
(A) providing living
quarters by purchase, lease, or other contract; or
(B) paying the operating
costs, including interest, amortization payments, repairs, and taxes on
premises owned by the principal and occupied by those individuals;
(2) provide for the
individuals described by Subdivision (1):
(A) normal domestic help;
(B) usual vacations and
travel expenses; and
(C) money for shelter,
clothing, food, appropriate education, and other living costs;
(3) pay necessary medical,
dental, and surgical care, hospitalization, and custodial care for the
individuals described by Subdivision (1);
(4) continue any provision
made by the principal for the individuals described by Subdivision (1) for
automobiles or other means of transportation, including registering,
licensing, insuring, and replacing the automobiles or other means of
transportation;
(5) maintain or open charge
accounts for the convenience of the individuals described by Subdivision
(1) and open new accounts the attorney
in fact or agent considers desirable to accomplish a lawful purpose;
[and]
(6) continue:
(A) payments incidental to
the membership or affiliation of the principal in a church, club, society,
order, or other organization; or
(B) contributions to those
organizations;
(7) perform all acts
necessary in relation to the principal's mail, including:
(A) receiving, signing
for, opening, reading, and responding to any mail addressed to the
principal, whether through the United States Postal Service or a private
mail service;
(B) forwarding the
principal's mail to any address; and
(C) representing the
principal before the United States Postal Service in all matters relating
to mail service; and
(8) subject to the needs
of the individuals described by Subdivision (1), provide for the reasonable
care of the principal's pets.
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SECTION 13. Sections 752.109
and 752.111, Estates Code, are amended to read as follows:
Sec. 752.109. ESTATE, TRUST,
AND OTHER BENEFICIARY TRANSACTIONS. The language conferring authority with
respect to estate, trust, and other beneficiary transactions in a statutory
durable power of attorney empowers the [attorney
in fact or] agent to act for the principal in all matters that
affect a trust, probate estate, guardianship, conservatorship, life
estate, escrow, custodianship, or other fund from which the principal
is, may become, or claims to be entitled, as a beneficiary, to a share or
payment, including to:
(1) accept, reject,
disclaim, receive, receipt for, sell, assign, release, pledge, exchange, or
consent to a reduction in or modification of a share in or payment from the
fund;
(2) demand or obtain by
litigation, action, or otherwise money or any other thing of value to which
the principal is, may become, or claims to be entitled because of the fund;
(3) initiate, participate
in, or oppose a legal or judicial proceeding to:
(A) ascertain the meaning,
validity, or effect of a deed, will, declaration of trust, or other
instrument or transaction affecting the interest of the principal; or
(B) remove, substitute, or
surcharge a fiduciary;
(4) conserve, invest,
disburse, or use anything received for an authorized purpose; and
(5) transfer all or part of
the principal's interest in real property, stocks, bonds, accounts with
financial institutions, insurance, and other property to the trustee of a
revocable trust created by the principal as settlor.
Sec. 752.111. PERSONAL AND
FAMILY MAINTENANCE. The language conferring authority with respect to
personal and family maintenance in a statutory durable power of attorney
empowers the [attorney in fact or]
agent to:
(1) perform the acts
necessary to maintain the customary standard of living of the principal,
the principal's spouse and children, and other individuals customarily or
legally entitled to be supported by the principal, including:
(A) providing living
quarters by purchase, lease, or other contract; or
(B) paying the operating
costs, including interest, amortization payments, repairs, and taxes on
premises owned by the principal and occupied by those individuals;
(2) provide for the
individuals described by Subdivision (1):
(A) normal domestic help;
(B) usual vacations and
travel expenses; and
(C) money for shelter,
clothing, food, appropriate education, and other living costs;
(3) pay necessary medical,
dental, and surgical care, hospitalization, and custodial care for the
individuals described by Subdivision (1);
(4) continue any provision
made by the principal for the individuals described by Subdivision (1) for
automobiles or other means of transportation, including registering,
licensing, insuring, and replacing the automobiles or other means of
transportation;
(5) maintain or open charge
accounts for the convenience of the individuals described by Subdivision
(1) and open new accounts the [attorney
in fact or] agent considers desirable to accomplish a lawful
purpose; [and]
(6) continue:
(A) payments incidental to
the membership or affiliation of the principal in a church, club, society,
order, or other organization; or
(B) contributions to those
organizations;
(7) perform all acts
necessary in relation to the principal's mail, including:
(A) receiving, signing
for, opening, reading, and responding to any mail addressed to the
principal, whether through the United States Postal Service or a private
mail service;
(B) forwarding the
principal's mail to any address; and
(C) representing the
principal before the United States Postal Service in all matters relating
to mail service; and
(8) subject to the needs
of the individuals described by Subdivision (1), provide for the reasonable
care of the principal's pets.
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SECTION 14. 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 [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 granted the authority to create or change a beneficiary designation
expressly as required by Section 751.031(b)(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 a
beneficiary by the principal 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 14. 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 [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 granted the authority to create or change a beneficiary designation
expressly as required by Section 751.031(b)(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 a beneficiary by the principal 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 15. The following
sections of the Estates Code are repealed.
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SECTION 15. Same as
introduced version.
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SECTION 16. (a) Except as
otherwise provided by this Act, this Act applies to:
(1) a durable power of
attorney, including a statutory durable power of attorney, created before,
on, or after the effective date of this Act; and
(2) a judicial proceeding
concerning a durable power of attorney pending on, or commenced on or
after, the effective date of this Act.
(b) The following provisions
apply only to a durable power of attorney, including a statutory durable
power of attorney, executed on or after the effective date of this Act:
(1) Section 751.024, Estates
Code, as added by this Act;
(2) Subchapter A-2, Chapter
751, Estates Code, as added by this Act;
(3) Subchapters B, C, and D,
Chapter 751, Estates Code, as amended by this Act; and
(4) Chapter 752, Estates
Code, as amended by this Act.
(c) A durable power of
attorney, including a statutory durable power of attorney, executed before
the effective date of this Act is governed by the provisions specified in
Subsections (b)(3) and (4) of this section as those provisions existed on
the date the durable power of attorney was executed, and the former law is
continued in effect for that purpose.
(d) 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 continues in effect for that purpose
and applies in those circumstances.
(e) An act performed by a
principal or agent with respect to a durable power of attorney before the
effective date of this Act is not affected by this Act.
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SECTION 16. Same as
introduced version.
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SECTION 17. This Act takes
effect September 1, 2017.
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SECTION 17. Same as
introduced version.
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