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A BILL TO BE ENTITLED
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AN ACT
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relating to the adoption of the Texas Revised Uniform Fiduciary |
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Access to Digital Assets Act. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The Estates Code is amended by adding Title 4 to |
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read as follows: |
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TITLE 4. DIGITAL ASSETS |
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CHAPTER 2001. TEXAS REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL |
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ASSETS ACT |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 2001.001. SHORT TITLE. This chapter may be cited as |
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the Texas Revised Uniform Fiduciary Access to Digital Assets Act. |
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Sec. 2001.002. DEFINITIONS. In this chapter: |
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(1) "Account" means an arrangement under a |
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terms-of-service agreement in which a custodian carries, |
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maintains, processes, receives, or stores a digital asset of the |
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user or provides goods or services to the user. |
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(2) "Agent" means an attorney in fact granted |
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authority to act for a principal under a durable or other power of |
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attorney. The term does not include an agent under a medical power |
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of attorney. |
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(3) "Carries" means to engage in the transmission of |
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an electronic communication. |
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(4) "Catalog of electronic communications" means |
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information that identifies each person with whom a user has had an |
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electronic communication, the time and date of the communication, |
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and the electronic address of the person. |
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(5) "Content of an electronic communication" means |
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information concerning the substance or meaning of an electronic |
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communication that: |
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(A) has been sent, uploaded, received, or |
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downloaded by a user; |
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(B) is in electronic storage by a custodian |
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providing an electronic communication service to the public or is |
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carried or maintained by a custodian providing a remote computing |
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service to the public; and |
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(C) is not readily accessible to the public. |
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(6) "Custodian" means a person that carries, |
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maintains, processes, receives, or stores a digital asset of a |
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user. |
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(7) "Designated recipient" means a person chosen by a |
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user using an online tool to administer digital assets of the user. |
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(8) "Digital asset" means an electronic record in |
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which an individual has a right or interest. The term does not |
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include an underlying asset or liability unless the asset or |
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liability is itself an electronic record. |
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(9) "Electronic" means relating to technology having |
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electrical, digital, magnetic, wireless, optical, electromagnetic, |
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or similar capabilities. |
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(10) "Electronic communication" has the meaning |
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assigned by 18 U.S.C. Section 2510(12), as it existed on January 1, |
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2017. |
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(11) "Electronic communication service" means a |
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custodian that provides to a user the ability to send or receive an |
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electronic communication. |
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(12) "Fiduciary" means an original, additional, or |
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successor personal representative, guardian, agent, or trustee. |
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(13) "Guardian" has the meaning assigned by Section |
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1002.012, except that the term does not include a guardian of the |
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person of a ward. |
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(14) "Information" means data, text, images, videos, |
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sounds, codes, computer programs, software, databases, or the like. |
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(15) "Online tool" means an electronic service |
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provided by a custodian that allows the user, in an agreement |
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distinct from the terms-of-service agreement between the custodian |
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and user, to provide directions for disclosure or nondisclosure of |
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digital assets to a third person. |
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(16) "Person" has the meaning assigned by Section |
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311.005, Government Code. |
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(17) "Personal representative," notwithstanding |
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Section 22.031, means: |
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(A) an executor or independent executor; |
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(B) an administrator, independent administrator, |
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or temporary administrator; |
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(C) a successor to an executor or administrator |
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listed in Paragraph (A) or (B); or |
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(D) a person who performs functions |
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substantially similar to those performed by the persons listed in |
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Paragraphs (A), (B), or (C) under the laws of this state, other than |
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this chapter. |
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(18) "Power of attorney" means a record that grants an |
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agent authority to act in the place of a principal with regard to |
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property matters, including a durable power of attorney as provided |
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by Subtitle P, Title 2. The term does not include a medical power of |
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attorney. |
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(19) "Principal" means an individual who grants |
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authority to an agent in a power of attorney. |
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(20) "Record" means information that is inscribed on a |
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tangible medium or that is stored in an electronic or other medium |
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and is retrievable in perceivable form. |
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(21) "Remote computing service" means a custodian that |
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provides to a user computer processing services or the storage of |
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digital assets by means of an electronic communications system, as |
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defined by 18 U.S.C. Section 2510(14), as it existed on January 1, |
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2017. |
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(22) "Terms-of-service agreement" means an agreement |
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that controls the relationship between a user and a custodian. |
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(23) "Trustee" has the meaning assigned by Section |
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111.004, Property Code. |
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(24) "User" means a person who has an account with a |
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custodian. |
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Sec. 2001.003. APPLICABILITY. (a) This chapter applies to |
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a custodian if the user resides in this state or resided in this |
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state at the time of the user's death. |
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(b) This chapter does not apply to a digital asset of an |
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employer used by an employee in the ordinary course of the |
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employer's business. |
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Sec. 2001.004. UNIFORMITY OF APPLICATION AND CONSTRUCTION. |
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In applying and construing this chapter, consideration must be |
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given to the need to promote uniformity of the law, with respect to |
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the subject matter of this chapter, among states that enact a law |
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based on the uniform act on which this chapter is based. |
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Sec. 2001.005. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL |
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AND NATIONAL COMMERCE ACT. This chapter modifies, limits, and |
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supersedes the federal Electronic Signatures in Global and National |
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Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify, |
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limit, or supersede Section 101(c) of that Act (15 U.S.C. Section |
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7001(c)) or authorize electronic delivery of any of the notices |
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described in Section 103(b) of that Act (15 U.S.C. Section |
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7003(b)). |
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SUBCHAPTER B. GENERAL PROCEDURES FOR ACCESS TO DIGITAL ASSETS |
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Sec. 2001.051. USER DIRECTION FOR DISCLOSURE OF DIGITAL |
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ASSETS. (a) A user may use an online tool to direct the custodian |
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to disclose or not to disclose to a designated recipient some or all |
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of the user's digital assets, including the content of an |
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electronic communication. If the online tool allows the user to |
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modify or delete a direction at all times, a direction regarding |
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disclosure using an online tool overrides a contrary direction by |
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the user in a will, trust, power of attorney, or other record. |
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(b) If a user has not used an online tool to give direction |
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under Subsection (a) or if the custodian has not provided an online |
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tool, the user may allow or prohibit disclosure to a fiduciary of |
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some or all of the user's digital assets, including the content of |
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an electronic communication sent or received by the user, in a will, |
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trust, power of attorney, or other record. |
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(c) A user's direction under Subsection (a) or (b) overrides |
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a contrary provision in a terms-of-service agreement that does not |
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require the user to act affirmatively and distinctly from the |
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user's assent to the terms of service. |
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Sec. 2001.052. TERMS-OF-SERVICE AGREEMENT. (a) This |
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chapter does not change or impair a right of a custodian or a user |
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under a terms-of-service agreement to access and use digital assets |
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of the user. |
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(b) This chapter does not give a fiduciary or designated |
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recipient any new or expanded rights other than those held by the |
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user for whom, or for whose estate or trust, the fiduciary or |
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designated recipient acts or represents. |
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(c) A fiduciary's or designated recipient's access to |
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digital assets may be modified or eliminated by a user, by federal |
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law, or by a terms-of-service agreement if the user has not provided |
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direction under Section 2001.051. |
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Sec. 2001.053. PROCEDURE FOR DISCLOSING DIGITAL ASSETS. |
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(a) When disclosing digital assets of a user under this chapter, |
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the custodian may, at the custodian's sole discretion: |
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(1) grant a fiduciary or designated recipient full |
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access to the user's account; |
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(2) grant a fiduciary or designated recipient partial |
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access to the user's account sufficient to perform the tasks with |
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which the fiduciary or designated recipient is charged; or |
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(3) provide a fiduciary or designated recipient a copy |
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in a record of any digital asset that, on the date the custodian |
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received the request for disclosure, the user could have accessed |
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if the user were alive and had full capacity and access to the |
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account. |
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(b) A custodian may assess a reasonable administrative |
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charge for the cost of disclosing digital assets under this |
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chapter. |
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(c) A custodian is not required to disclose under this |
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chapter a digital asset deleted by a user. |
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(d) If a user directs or a fiduciary requests a custodian to |
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disclose under this chapter some, but not all, of the user's digital |
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assets, the custodian is not required to disclose the assets if |
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segregation of the assets would impose an undue burden on the |
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custodian. If the custodian believes the direction or request |
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imposes an undue burden, the custodian or fiduciary may seek an |
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order from the court to disclose: |
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(1) a subset limited by date of the user's digital |
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assets; |
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(2) all of the user's digital assets to the fiduciary |
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or designated recipient; |
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(3) none of the user's digital assets; or |
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(4) all of the user's digital assets to the court for |
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review in camera. |
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SUBCHAPTER C. PROCEDURES FOR DISCLOSURE OF DIGITAL ASSETS OF |
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DECEASED USER |
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Sec. 2001.101. DISCLOSURE OF CONTENT OF ELECTRONIC |
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COMMUNICATIONS OF DECEASED USER. (a) If a deceased user consented |
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to or a court directs disclosure of the content of an electronic |
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communication of the user, the custodian shall disclose to the |
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personal representative of the estate of the user the content of an |
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electronic communication sent or received by the user if the |
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representative gives the custodian: |
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(1) a written request for disclosure in physical or |
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electronic form; |
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(2) a certified copy of the death certificate of the |
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user; |
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(3) a certified copy of letters testamentary or of |
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administration, a small estate affidavit filed under Section |
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205.001, or other court order; and |
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(4) unless the user provided direction using an online |
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tool, a copy of the user's will, trust, power of attorney, or other |
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record evidencing the user's consent to disclosure of the content |
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of an electronic communication if the user consented to the |
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disclosure. |
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(b) In addition to the items required to be given to the |
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custodian under Subsection (a), the personal representative shall |
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provide the following if requested by the custodian: |
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(1) a number, user name, address, or other unique |
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subscriber or account identifier assigned by the custodian to |
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identify the deceased user's account; |
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(2) evidence linking the account to the user; or |
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(3) a finding by the court that: |
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(A) the deceased user had a specific account with |
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the custodian, identifiable by the information specified in |
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Subdivision (1); |
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(B) disclosure of the content of an electronic |
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communication of the user would not violate 18 U.S.C. Section 2701 |
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et seq., 47 U.S.C. Section 222, or other applicable law; |
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(C) unless the user provided direction using an |
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online tool, the user consented to disclosure of the content of an |
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electronic communication; or |
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(D) disclosure of the content of an electronic |
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communication of the user is reasonably necessary for |
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administration of the estate. |
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Sec. 2001.102. DISCLOSURE OF OTHER DIGITAL ASSETS OF |
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DECEASED USER. (a) Unless the deceased user prohibited disclosure |
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of digital assets or the court directs otherwise, a custodian shall |
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disclose to the personal representative of the estate of a deceased |
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user a catalog of electronic communications sent or received by the |
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user and digital assets, other than the content of an electronic |
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communication, of the user if the representative gives the |
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custodian: |
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(1) a written request for disclosure in physical or |
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electronic form; |
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(2) a certified copy of the death certificate of the |
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user; and |
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(3) a certified copy of letters testamentary or of |
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administration, a small estate affidavit filed under Section |
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205.001, or other court order. |
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(b) In addition to the items required to be given to the |
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custodian under Subsection (a), the personal representative shall |
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provide the following if requested by the custodian: |
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(1) a number, user name, address, or other unique |
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subscriber or account identifier assigned by the custodian to |
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identify the deceased user's account; |
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(2) evidence linking the account to the user; |
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(3) an affidavit stating that disclosure of the user's |
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digital assets is reasonably necessary for administration of the |
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estate; or |
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(4) a finding by the court that: |
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(A) the deceased user had a specific account with |
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the custodian, identifiable by the information specified in |
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Subdivision (1); or |
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(B) disclosure of the user's digital assets is |
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reasonably necessary for administration of the estate. |
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SUBCHAPTER D. PROCEDURES FOR DISCLOSURE OF DIGITAL ASSETS OF |
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PRINCIPAL |
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Sec. 2001.131. DISCLOSURE OF CONTENT OF ELECTRONIC |
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COMMUNICATIONS OF PRINCIPAL. (a) To the extent a power of attorney |
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expressly grants an agent authority over the content of an |
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electronic communication sent or received by the principal and |
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unless directed otherwise by the principal or the court, a |
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custodian shall disclose to the agent the content of an electronic |
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communication if the agent gives the custodian: |
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(1) a written request for disclosure in physical or |
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electronic form; |
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(2) an original or copy of the power of attorney |
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expressly granting the agent authority over the content of an |
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electronic communication of the principal; and |
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(3) a certification by the agent, under penalty of |
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perjury, that the power of attorney is in effect. |
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(b) In addition to the items required to be given to the |
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custodian under Subsection (a), the agent shall provide the |
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following if requested by the custodian: |
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(1) a number, user name, address, or other unique |
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subscriber or account identifier assigned by the custodian to |
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identify the principal's account; or |
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(2) evidence linking the account to the principal. |
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Sec. 2001.132. DISCLOSURE OF OTHER DIGITAL ASSETS OF |
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PRINCIPAL. (a) Unless otherwise ordered by the court, directed by |
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the principal, or provided by a power of attorney, a custodian shall |
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disclose to an agent with specific authority over digital assets or |
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general authority to act on behalf of a principal a catalog of |
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electronic communications sent or received by the principal and |
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digital assets of the principal, other than the content of an |
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electronic communication, if the agent gives the custodian: |
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(1) a written request for disclosure in physical or |
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electronic form; |
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(2) an original or copy of the power of attorney that |
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gives the agent specific authority over digital assets or general |
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authority to act on behalf of the principal; and |
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(3) a certification by the agent, under penalty of |
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perjury, that the power of attorney is in effect. |
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(b) In addition to the items required to be given to the |
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custodian under Subsection (a), the agent shall provide the |
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following if requested by the custodian: |
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(1) a number, user name, address, or other unique |
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subscriber or account identifier assigned by the custodian to |
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identify the principal's account; or |
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(2) evidence linking the account to the principal. |
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SUBCHAPTER E. DISCLOSURE OF DIGITAL ASSETS HELD IN TRUST |
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Sec. 2001.151. DISCLOSURE OF DIGITAL ASSETS HELD IN TRUST |
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WHEN TRUSTEE IS ORIGINAL USER. Unless otherwise ordered by the |
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court or provided in a trust, a custodian shall disclose to a |
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trustee that is an original user of an account any digital asset of |
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the account held in trust, including a catalog of electronic |
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communications of the trustee and the content of an electronic |
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communication. |
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Sec. 2001.152. DISCLOSURE OF CONTENT OF ELECTRONIC |
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COMMUNICATIONS HELD IN TRUST WHEN TRUSTEE IS NOT ORIGINAL USER. (a) |
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Unless otherwise ordered by the court, directed by the user, or |
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provided in a trust, a custodian shall disclose to a trustee that is |
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not an original user of an account the content of an electronic |
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communication sent or received by an original or successor user and |
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carried, maintained, processed, received, or stored by the |
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custodian in the account of the trust if the trustee gives the |
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custodian: |
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(1) a written request for disclosure in physical or |
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electronic form; |
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(2) a certified copy of the trust instrument or a |
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certification of trust under Section 114.086, Property Code, that |
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includes consent to disclosure of the content of an electronic |
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communication to the trustee; and |
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(3) a certification by the trustee, under penalty of |
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perjury, that the trust exists and the trustee is a currently acting |
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trustee of the trust. |
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(b) In addition to the items required to be given to the |
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custodian under Subsection (a), the trustee shall provide the |
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following if requested by the custodian: |
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(1) a number, user name, address, or other unique |
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subscriber or account identifier assigned by the custodian to |
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identify the trust's account; or |
|
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(2) evidence linking the account to the trust. |
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Sec. 2001.153. DISCLOSURE OF OTHER DIGITAL ASSETS HELD IN |
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TRUST WHEN TRUSTEE IS NOT ORIGINAL USER. (a) Unless otherwise |
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ordered by the court, directed by the user, or provided in a trust, |
|
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a custodian shall disclose to a trustee that is not an original user |
|
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of an account a catalog of electronic communications sent or |
|
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received by an original or successor user and stored, carried, or |
|
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maintained by the custodian in an account of the trust and any |
|
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digital assets in which the trust has a right or interest, other |
|
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than the content of an electronic communication, if the trustee |
|
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gives the custodian: |
|
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(1) a written request for disclosure in physical or |
|
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electronic form; |
|
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(2) a certified copy of the trust instrument or a |
|
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certification of trust under Section 114.086, Property Code; and |
|
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(3) a certification by the trustee, under penalty of |
|
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perjury, that the trust exists and the trustee is a currently acting |
|
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trustee of the trust. |
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(b) In addition to the items required to be given to the |
|
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custodian under Subsection (a), the trustee shall provide the |
|
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following if requested by the custodian: |
|
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(1) a number, user name, address, or other unique |
|
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subscriber or account identifier assigned by the custodian to |
|
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identify the trust's account; or |
|
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(2) evidence linking the account to the trust. |
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SUBCHAPTER F. DISCLOSURE OF DIGITAL ASSETS TO GUARDIAN |
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Sec. 2001.171. DISCLOSURE OF DIGITAL ASSETS TO GUARDIAN. |
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(a) After an opportunity for a hearing under Title 3, the court may |
|
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grant the guardian of a ward access to the digital assets of the |
|
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ward. |
|
|
(b) Unless otherwise ordered by the court or directed by the |
|
|
user, a custodian shall disclose to the guardian of a ward the |
|
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catalog of electronic communications sent or received by the ward |
|
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and any digital assets in which the ward has a right or interest, |
|
|
other than the content of an electronic communication, if the |
|
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guardian gives the custodian: |
|
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(1) a written request for disclosure in physical or |
|
|
electronic form; and |
|
|
(2) a certified copy of the court order that gives the |
|
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guardian authority over the digital assets of the ward. |
|
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(c) In addition to the items required to be given to the |
|
|
custodian under Subsection (b), the guardian shall provide the |
|
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following if requested by the custodian: |
|
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(1) a number, user name, address, or other unique |
|
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subscriber or account identifier assigned by the custodian to |
|
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identify the account of the ward; or |
|
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(2) evidence linking the account to the ward. |
|
|
(d) The guardian of a ward may request a custodian of the |
|
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digital assets of the ward to suspend or terminate an account of the |
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ward for good cause. A request made under this section must be |
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accompanied by a certified copy of the court order giving the |
|
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guardian authority over the ward's digital assets. |
|
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SUBCHAPTER G. DUTY AND AUTHORITY OF FIDUCIARY AND OTHERS REGARDING |
|
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DIGITAL ASSETS |
|
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Sec. 2001.201. FIDUCIARY DUTY AND AUTHORITY. (a) The legal |
|
|
duties imposed on a fiduciary charged with managing tangible |
|
|
property apply to the management of digital assets, including: |
|
|
(1) the duty of care; |
|
|
(2) the duty of loyalty; and |
|
|
(3) the duty of confidentiality. |
|
|
(b) A fiduciary's or designated recipient's authority with |
|
|
respect to a digital asset of a user: |
|
|
(1) except as otherwise provided by Section 2001.051, |
|
|
is subject to the applicable terms of service; |
|
|
(2) is subject to other applicable law, including |
|
|
copyright law; |
|
|
(3) in the case of a fiduciary, is limited by the scope |
|
|
of the fiduciary's duties; and |
|
|
(4) may not be used to impersonate the user. |
|
|
(c) A fiduciary with authority over the property of a |
|
|
decedent, ward, principal, or settlor has the right to access any |
|
|
digital asset in which the decedent, ward, principal, or settlor |
|
|
has or had a right or interest and that is not held by a custodian or |
|
|
subject to a terms-of-service agreement. |
|
|
(d) A fiduciary acting within the scope of the fiduciary's |
|
|
duties is an authorized user of the property of the decedent, ward, |
|
|
principal, or settlor for the purpose of applicable computer fraud |
|
|
and unauthorized computer access laws, including all laws of this |
|
|
state governing unauthorized computer access. |
|
|
(e) A fiduciary with authority over the tangible personal |
|
|
property of a decedent, ward, principal, or settlor: |
|
|
(1) has the right to access the property and any |
|
|
digital asset stored in it; and |
|
|
(2) is an authorized user for the purpose of |
|
|
applicable computer fraud and unauthorized computer access laws, |
|
|
including all laws of this state governing unauthorized computer |
|
|
access. |
|
|
Sec. 2001.202. AUTHORITY TO TERMINATE ACCOUNT. (a) A |
|
|
custodian may disclose information in an account to a fiduciary of |
|
|
the user when the information is required to terminate an account |
|
|
used to access digital assets licensed to the user. |
|
|
(b) A fiduciary of a user may request a custodian to |
|
|
terminate the user's account. A request for termination must be in |
|
|
writing, in physical or electronic form, and accompanied by: |
|
|
(1) if the user is deceased, a certified copy of the |
|
|
death certificate of the user; and |
|
|
(2) one of the following giving the fiduciary |
|
|
authority over the account: |
|
|
(A) a certified copy of letters testamentary or |
|
|
of administration, a small estate affidavit filed under Section |
|
|
205.001, or other court order; |
|
|
(B) a power of attorney; or |
|
|
(C) the trust instrument. |
|
|
(c) In addition to the items required to accompany a |
|
|
termination request under Subsection (b), the fiduciary shall |
|
|
provide the following if requested by the custodian: |
|
|
(1) a number, user name, address, or other unique |
|
|
subscriber or account identifier assigned by the custodian to |
|
|
identify the user's account; |
|
|
(2) evidence linking the account to the user; or |
|
|
(3) a finding by the court that the user had a specific |
|
|
account with the custodian, identifiable by the information |
|
|
specified in Subdivision (1). |
|
|
SUBCHAPTER H. CUSTODIAN COMPLIANCE AND IMMUNITY REGARDING DIGITAL |
|
|
ASSETS |
|
|
Sec. 2001.231. CUSTODIAN COMPLIANCE AND IMMUNITY. (a) Not |
|
|
later than 60 days after receipt of the information required under |
|
|
Subchapter C, D, E, F, or G, a custodian shall comply with a request |
|
|
under this chapter from a fiduciary or designated recipient to |
|
|
disclose digital assets or terminate an account. If the custodian |
|
|
fails to comply, the fiduciary or designated recipient may apply to |
|
|
the court for an order directing compliance. |
|
|
(b) An order under Subsection (a) directing compliance must |
|
|
contain a finding that compliance is not in violation of 18 U.S.C. |
|
|
Section 2702. |
|
|
(c) A custodian may notify the user that a request for |
|
|
disclosure or to terminate an account was made under this chapter. |
|
|
(d) A custodian may deny a request under this chapter from a |
|
|
fiduciary or designated recipient for disclosure of digital assets |
|
|
or to terminate an account if the custodian is aware of any lawful |
|
|
access to the account following the receipt of the request. |
|
|
(e) This chapter does not limit a custodian's ability to |
|
|
obtain or require a fiduciary or designated recipient requesting |
|
|
disclosure or termination under this chapter to obtain a court |
|
|
order that: |
|
|
(1) specifies that an account belongs to the ward or |
|
|
principal; |
|
|
(2) specifies that there is sufficient consent from |
|
|
the ward or principal to support the requested disclosure; and |
|
|
(3) contains a finding required by a law other than |
|
|
this chapter. |
|
|
Sec. 2001.232. IMMUNITY FROM LIABILITY. A custodian and |
|
|
the custodian's officers, employees, and agents are immune from |
|
|
liability for an act or omission done in good faith in compliance |
|
|
with this chapter. |
|
|
SECTION 2. Section 752.051, Estates Code, is amended to |
|
|
read as follows: |
|
|
Sec. 752.051. FORM. The following form is known as a |
|
|
"statutory durable power of attorney": |
|
|
STATUTORY DURABLE POWER OF ATTORNEY |
|
|
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. |
|
|
THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P, |
|
|
TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE |
|
|
POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT |
|
|
AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS |
|
|
FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO |
|
|
DO SO. |
|
|
You should select someone you trust to serve as your agent |
|
|
(attorney in fact). Unless you specify otherwise, generally the |
|
|
agent's (attorney in fact's) authority will continue until: |
|
|
(1) you die or revoke the power of attorney; |
|
|
(2) your agent (attorney in fact) resigns or is unable |
|
|
to act for you; or |
|
|
(3) a guardian is appointed for your estate. |
|
|
I, __________ (insert your name and address), appoint |
|
|
__________ (insert the name and address of the person appointed) as |
|
|
my agent (attorney in fact) to act for me in any lawful way with |
|
|
respect to all of the following powers that I have initialed below. |
|
|
TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN |
|
|
FRONT OF (O) [(N)] AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS |
|
|
LISTED IN (A) THROUGH (N) [(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) Digital assets and the content of an electronic |
|
|
communication; |
|
|
____ (O) [(N)] ALL OF THE POWERS LISTED IN (A) THROUGH (N) |
|
|
[(M)]. YOU DO NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER |
|
|
POWER IF YOU INITIAL LINE (O) [(N)]. |
|
|
SPECIAL INSTRUCTIONS: |
|
|
Special instructions applicable to gifts (initial in front of |
|
|
the following sentence to have it apply): |
|
|
____ I grant my agent (attorney in fact) the power to apply my |
|
|
property to make gifts outright to or for the benefit of a person, |
|
|
including by the exercise of a presently exercisable general power |
|
|
of appointment held by me, except that the amount of a gift to an |
|
|
individual may not exceed the amount of annual exclusions allowed |
|
|
from the federal gift tax for the calendar year of the gift. |
|
|
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS |
|
|
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT. |
|
|
________________________________________________________________ |
|
|
________________________________________________________________ |
|
|
________________________________________________________________ |
|
|
________________________________________________________________ |
|
|
________________________________________________________________ |
|
|
________________________________________________________________ |
|
|
________________________________________________________________ |
|
|
________________________________________________________________ |
|
|
________________________________________________________________ |
|
|
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS |
|
|
EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED. |
|
|
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE |
|
|
ALTERNATIVE NOT CHOSEN: |
|
|
(A) This power of attorney is not affected by my subsequent |
|
|
disability or incapacity. |
|
|
(B) This power of attorney becomes effective upon my |
|
|
disability or incapacity. |
|
|
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY |
|
|
IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED. |
|
|
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT |
|
|
YOU CHOSE ALTERNATIVE (A). |
|
|
If Alternative (B) is chosen and a definition of my |
|
|
disability or incapacity is not contained in this power of |
|
|
attorney, I shall be considered disabled or incapacitated for |
|
|
purposes of this power of attorney if a physician certifies in |
|
|
writing at a date later than the date this power of attorney is |
|
|
executed that, based on the physician's medical examination of me, |
|
|
I am mentally incapable of managing my financial affairs. I |
|
|
authorize the physician who examines me for this purpose to |
|
|
disclose my physical or mental condition to another person for |
|
|
purposes of this power of attorney. A third party who accepts this |
|
|
power of attorney is fully protected from any action taken under |
|
|
this power of attorney that is based on the determination made by a |
|
|
physician of my disability or incapacity. |
|
|
I agree that any third party who receives a copy of this |
|
|
document may act under it. Revocation of the durable power of |
|
|
attorney is not effective as to a third party until the third party |
|
|
receives actual notice of the revocation. I agree to indemnify the |
|
|
third party for any claims that arise against the third party |
|
|
because of reliance on this power of attorney. |
|
|
If any agent named by me dies, becomes legally disabled, |
|
|
resigns, or refuses to act, I name the following (each to act alone |
|
|
and successively, in the order named) as successor(s) to that |
|
|
agent: __________. |
|
|
Signed this ______ day of __________, _____________ |
|
|
________________________________ |
|
|
(your signature) |
|
|
State of _______________________ |
|
|
County of ______________________ |
|
|
This document was acknowledged before me on ____________(date) by |
|
|
________________________ |
|
|
(name of principal) |
|
|
_______________________________ |
|
|
(signature of notarial officer) |
|
|
(Seal, if any, of notary) _______________________________________ |
|
|
(printed name) |
|
|
My commission expires: ______________ |
|
|
IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT) |
|
|
Agent's Duties |
|
|
When you accept the authority granted under this power of |
|
|
attorney, you establish a "fiduciary" relationship with the |
|
|
principal. This is a special legal relationship that imposes on you |
|
|
legal duties that continue until you resign or the power of attorney |
|
|
is terminated or revoked by the principal or by operation of law. A |
|
|
fiduciary duty generally includes the duty to: |
|
|
(1) act in good faith; |
|
|
(2) do nothing beyond the authority granted in this |
|
|
power of attorney; |
|
|
(3) act loyally for the principal's benefit; |
|
|
(4) avoid conflicts that would impair your ability to |
|
|
act in the principal's best interest; and |
|
|
(5) disclose your identity as an agent or attorney in |
|
|
fact when you act for the principal by writing or printing the name |
|
|
of the principal and signing your own name as "agent" or "attorney |
|
|
in fact" in the following manner: |
|
|
(Principal's Name) by (Your Signature) as Agent (or as |
|
|
Attorney in Fact) |
|
|
In addition, the Durable Power of Attorney Act (Subtitle P, |
|
|
Title 2, Estates Code) requires you to: |
|
|
(1) maintain records of each action taken or decision |
|
|
made on behalf of the principal; |
|
|
(2) maintain all records until delivered to the |
|
|
principal, released by the principal, or discharged by a court; and |
|
|
(3) if requested by the principal, provide an |
|
|
accounting to the principal that, unless otherwise directed by the |
|
|
principal or otherwise provided in the Special Instructions, must |
|
|
include: |
|
|
(A) the property belonging to the principal that |
|
|
has come to your knowledge or into your possession; |
|
|
(B) each action taken or decision made by you as |
|
|
agent or attorney in fact; |
|
|
(C) a complete account of receipts, |
|
|
disbursements, and other actions of you as agent or attorney in fact |
|
|
that includes the source and nature of each receipt, disbursement, |
|
|
or action, with receipts of principal and income shown separately; |
|
|
(D) a listing of all property over which you have |
|
|
exercised control that includes an adequate description of each |
|
|
asset and the asset's current value, if known to you; |
|
|
(E) the cash balance on hand and the name and |
|
|
location of the depository at which the cash balance is kept; |
|
|
(F) each known liability; |
|
|
(G) any other information and facts known to you |
|
|
as necessary for a full and definite understanding of the exact |
|
|
condition of the property belonging to the principal; and |
|
|
(H) all documentation regarding the principal's |
|
|
property. |
|
|
Termination of Agent's Authority |
|
|
You must stop acting on behalf of the principal if you learn |
|
|
of any event that terminates this power of attorney or your |
|
|
authority under this power of attorney. An event that terminates |
|
|
this power of attorney or your authority to act under this power of |
|
|
attorney includes: |
|
|
(1) the principal's death; |
|
|
(2) the principal's revocation of this power of |
|
|
attorney or your authority; |
|
|
(3) the occurrence of a termination event stated in |
|
|
this power of attorney; |
|
|
(4) if you are married to the principal, the |
|
|
dissolution of your marriage by court decree of divorce or |
|
|
annulment; |
|
|
(5) the appointment and qualification of a permanent |
|
|
guardian of the principal's estate; or |
|
|
(6) if ordered by a court, the suspension of this power |
|
|
of attorney on the appointment and qualification of a temporary |
|
|
guardian until the date the term of the temporary guardian expires. |
|
|
Liability of Agent |
|
|
The authority granted to you under this power of attorney is |
|
|
specified in the Durable Power of Attorney Act (Subtitle P, Title 2, |
|
|
Estates Code). If you violate the Durable Power of Attorney Act or |
|
|
act beyond the authority granted, you may be liable for any damages |
|
|
caused by the violation or subject to prosecution for |
|
|
misapplication of property by a fiduciary under Chapter 32 of the |
|
|
Texas Penal Code. |
|
|
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER |
|
|
THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL |
|
|
RESPONSIBILITIES OF AN AGENT. |
|
|
SECTION 3. Subchapter C, Chapter 752, Estates Code, is |
|
|
amended by adding Section 752.1145 to read as follows: |
|
|
Sec. 752.1145. DIGITAL ASSET TRANSACTIONS. (a) In this |
|
|
section, "digital asset" has the meaning assigned by Section |
|
|
2001.002. |
|
|
(b) The language conferring authority with respect to |
|
|
digital assets in a statutory durable power of attorney empowers |
|
|
the attorney in fact or agent, without further reference to a |
|
|
specific digital asset, to access digital assets as provided in |
|
|
Chapter 2001. |
|
|
SECTION 4. Section 752.115, Estates Code, is amended to |
|
|
read as follows: |
|
|
Sec. 752.115. EXISTING INTERESTS; FOREIGN INTERESTS. The |
|
|
powers described by Sections 752.102-752.1145 [752.102-752.114] |
|
|
may be exercised equally with respect to an interest the principal |
|
|
has at the time the durable power of attorney is executed or |
|
|
acquires later, whether or not: |
|
|
(1) the property is located in this state; or |
|
|
(2) the powers are exercised or the durable power of |
|
|
attorney is executed in this state. |
|
|
SECTION 5. Section 1151.101, Estates Code, is amended by |
|
|
amending Subsection (a) and adding Subsection (c) to read as |
|
|
follows: |
|
|
(a) Subject to Subsection (b), the guardian of the estate of |
|
|
a ward is entitled to: |
|
|
(1) possess and manage all property belonging to the |
|
|
ward; |
|
|
(2) collect all debts, rentals, or claims that are due |
|
|
to the ward; |
|
|
(3) enforce all obligations in favor of the ward; |
|
|
[and] |
|
|
(4) bring and defend suits by or against the ward; and |
|
|
(5) access the ward's digital assets as provided by |
|
|
Chapter 2001. |
|
|
(c) In this section, "digital asset" has the meaning |
|
|
assigned by Section 2001.002. |
|
|
SECTION 6. Subchapter A, Chapter 113, Property Code, is |
|
|
amended by adding Section 113.031 to read as follows: |
|
|
Sec. 113.031. DIGITAL ASSETS. (a) In this section, |
|
|
"digital asset" has the meaning assigned by Section 2001.002, |
|
|
Estates Code. |
|
|
(b) A trustee may access digital assets as provided by |
|
|
Chapter 2001, Estates Code. |
|
|
SECTION 7. Chapter 2001, Estates Code, as added by this Act, |
|
|
applies to: |
|
|
(1) a fiduciary acting under a will or power of |
|
|
attorney executed before, on, or after the effective date of this |
|
|
Act; |
|
|
(2) a personal representative acting for a decedent |
|
|
who died before, on, or after the effective date of this Act; |
|
|
(3) a guardian appointed to act for a ward in a |
|
|
guardianship proceeding commenced before, on, or after the |
|
|
effective date of this Act; and |
|
|
(4) a trustee acting under a trust created before, on, |
|
|
or after the effective date of this Act. |
|
|
SECTION 8. This Act takes effect September 1, 2017. |