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A BILL TO BE ENTITLED
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AN ACT
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relating to guardianships, substitutes for guardianships, and |
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durable powers of attorney for persons with disabilities or who are |
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incapacitated. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 751.052, Estates Code, is amended to |
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read as follows: |
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Sec. 751.052. RELATION OF ATTORNEY IN FACT OR AGENT TO |
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COURT-APPOINTED GUARDIAN OF ESTATE. (a) If, after execution of a |
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durable power of attorney, a court [of the principal's domicile] |
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appoints a temporary or permanent guardian of the estate for a ward |
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who is [of] the principal who executed the power of attorney, on the |
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qualification of the guardian the powers and authority granted to |
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[of] the attorney in fact or agent named in the power of attorney |
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are automatically suspended for the duration of the guardianship if |
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a temporary guardian is appointed or revoked if a permanent |
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guardian is appointed unless the court enters an order that: |
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(1) affirms and states the effectiveness of the power |
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of attorney; and |
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(2) confirms the validity of the appointment of the |
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named attorney in fact or agent [terminate on the qualification of
|
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the guardian of the estate]. |
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(b) If the powers and authority of an [The] attorney in fact |
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or agent are revoked as provided by Subsection (a), the attorney in |
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fact or agent shall: |
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(1) deliver to the guardian of the estate all assets of |
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the ward's estate that are in the possession of the attorney in fact |
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or agent; and |
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(2) account to the guardian of the estate as the |
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attorney in fact or agent would account to the principal if the |
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principal had terminated the powers of the attorney in fact or |
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agent. |
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[(b)
If, after execution of a durable power of attorney, a
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court of the principal's domicile appoints a temporary guardian of
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the estate of the principal, the court may suspend the powers of the
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attorney in fact or agent on the qualification of the temporary
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guardian of the estate until the date the term of the temporary
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guardian expires.
This subsection may not be construed to prohibit
|
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the application for or issuance of a temporary restraining order
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under applicable law.] |
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SECTION 2. Section 751.054(a), Estates Code, is amended to |
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read as follows: |
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(a) The revocation by, the death of, or the qualification of |
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a temporary or permanent guardian of the estate of a principal who |
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has executed a durable power of attorney or the removal of an |
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attorney in fact or agent under Chapter 753 does not revoke, |
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suspend, or terminate the agency as to the attorney in fact, agent, |
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or other person who acts in good faith under or in reliance on the |
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power without actual knowledge of the termination or suspension, as |
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applicable, of the power by: |
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(1) the revocation; |
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(2) the principal's death; [or] |
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(3) the qualification of a temporary or permanent |
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guardian of the estate of the principal; or |
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(4) the attorney in fact's or agent's removal. |
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SECTION 3. Section 751.055(a), Estates Code, is amended to |
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read as follows: |
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(a) As to an act undertaken in good-faith reliance on a |
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durable power of attorney, an affidavit executed by the attorney in |
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fact or agent under the durable power of attorney stating that the |
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attorney in fact or agent did not have, at the time the power was |
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exercised, actual knowledge of the termination or suspension of the |
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power, as applicable, by revocation, the principal's death, the |
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principal's divorce or the annulment of the principal's marriage if |
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the attorney in fact or agent was the principal's spouse, [or] the |
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qualification of a temporary or permanent guardian of the estate of |
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the principal, or the attorney in fact's or agent's removal, is |
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conclusive proof as between the attorney in fact or agent and a |
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person other than the principal or the principal's personal |
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representative dealing with the attorney in fact or agent of the |
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nonrevocation, nonsuspension, or nontermination of the power at |
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that time. |
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SECTION 4. Section 752.051, Estates Code, is amended to |
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read as follows: |
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Sec. 752.051. FORM. The following form is known as a |
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"statutory durable power of attorney": |
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STATUTORY DURABLE POWER OF ATTORNEY |
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NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. |
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THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P, |
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TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE |
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POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT |
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AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS |
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FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO |
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DO SO. |
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You should select someone you trust to serve as your agent |
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(attorney in fact). Unless you specify otherwise, generally the |
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agent's (attorney in fact's) authority will continue until: |
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(1) you die or revoke the power of attorney; |
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(2) your agent (attorney in fact) resigns, is removed |
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by court order, or is unable to act for you; or |
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(3) a guardian is appointed for your estate. |
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I, __________ (insert your name and address), appoint |
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__________ (insert the name and address of the person appointed) as |
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my agent (attorney in fact) to act for me in any lawful way with |
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respect to all of the following powers that I have initialed below. |
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TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN |
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FRONT OF (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS |
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LISTED IN (A) THROUGH (M). |
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TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE |
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POWER YOU ARE GRANTING. |
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TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE |
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POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD. |
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____ (A) Real property transactions; |
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____ (B) Tangible personal property transactions; |
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____ (C) Stock and bond transactions; |
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____ (D) Commodity and option transactions; |
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____ (E) Banking and other financial institution |
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transactions; |
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____ (F) Business operating transactions; |
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____ (G) Insurance and annuity transactions; |
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____ (H) Estate, trust, and other beneficiary transactions; |
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____ (I) Claims and litigation; |
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____ (J) Personal and family maintenance; |
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____ (K) Benefits from social security, Medicare, Medicaid, |
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or other governmental programs or civil or military service; |
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____ (L) Retirement plan transactions; |
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____ (M) Tax matters; |
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____ (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU DO |
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NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU |
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INITIAL LINE (N). |
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SPECIAL INSTRUCTIONS: |
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Special instructions applicable to gifts (initial in front of |
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the following sentence to have it apply): |
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____ I grant my agent (attorney in fact) the power to apply my |
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property to make gifts outright to or for the benefit of a person, |
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including by the exercise of a presently exercisable general power |
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of appointment held by me, except that the amount of a gift to an |
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individual may not exceed the amount of annual exclusions allowed |
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from the federal gift tax for the calendar year of the gift. |
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ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS |
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LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT. |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS |
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EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED. |
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CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE |
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ALTERNATIVE NOT CHOSEN: |
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(A) This power of attorney is not affected by my subsequent |
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disability or incapacity. |
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(B) This power of attorney becomes effective upon my |
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disability or incapacity. |
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YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY |
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IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED. |
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IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT |
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YOU CHOSE ALTERNATIVE (A). |
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If Alternative (B) is chosen and a definition of my |
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disability or incapacity is not contained in this power of |
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attorney, I shall be considered disabled or incapacitated for |
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purposes of this power of attorney if a physician certifies in |
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writing at a date later than the date this power of attorney is |
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executed that, based on the physician's medical examination of me, |
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I am mentally incapable of managing my financial affairs. I |
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authorize the physician who examines me for this purpose to |
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disclose my physical or mental condition to another person for |
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purposes of this power of attorney. A third party who accepts this |
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power of attorney is fully protected from any action taken under |
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this power of attorney that is based on the determination made by a |
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physician of my disability or incapacity. |
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I agree that any third party who receives a copy of this |
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document may act under it. Revocation of the durable power of |
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attorney is not effective as to a third party until the third party |
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receives actual notice of the revocation. I agree to indemnify the |
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third party for any claims that arise against the third party |
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because of reliance on this power of attorney. |
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If any agent named by me dies, becomes legally disabled, |
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resigns, [or] refuses to act, or is removed by court order, I name |
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the following (each to act alone and successively, in the order |
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named) as successor(s) to that agent: __________. |
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Signed this ______ day of __________, _____________ |
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___________________________ |
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(your signature) |
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State of _______________________ |
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County of ______________________ |
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This document was acknowledged before me on ____________(date) by |
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________________________ |
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(name of principal) |
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______________________________ |
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(signature of notarial officer) |
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(Seal, if any, of notary) |
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________________________________________ |
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(printed name) |
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My commission expires: ______________ |
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IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT) |
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Agent's Duties |
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When you accept the authority granted under this power of |
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attorney, you establish a "fiduciary" relationship with the |
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principal. This is a special legal relationship that imposes on you |
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legal duties that continue until you resign or the power of attorney |
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is terminated, suspended, or revoked by the principal or by |
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operation of law. A fiduciary duty generally includes the duty to: |
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(1) act in good faith; |
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(2) do nothing beyond the authority granted in this |
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power of attorney; |
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(3) act loyally for the principal's benefit; |
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(4) avoid conflicts that would impair your ability to |
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act in the principal's best interest; and |
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(5) disclose your identity as an agent or attorney in |
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fact when you act for the principal by writing or printing the name |
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of the principal and signing your own name as "agent" or "attorney |
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in fact" in the following manner: |
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(Principal's Name) by (Your Signature) as Agent (or as |
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Attorney in Fact) |
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In addition, the Durable Power of Attorney Act (Subtitle P, |
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Title 2, Estates Code) requires you to: |
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(1) maintain records of each action taken or decision |
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made on behalf of the principal; |
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(2) maintain all records until delivered to the |
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principal, released by the principal, or discharged by a court; and |
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(3) if requested by the principal, provide an |
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accounting to the principal that, unless otherwise directed by the |
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principal or otherwise provided in the Special Instructions, must |
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include: |
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(A) the property belonging to the principal that |
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has come to your knowledge or into your possession; |
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(B) each action taken or decision made by you as |
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agent or attorney in fact; |
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(C) a complete account of receipts, |
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disbursements, and other actions of you as agent or attorney in fact |
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that includes the source and nature of each receipt, disbursement, |
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or action, with receipts of principal and income shown separately; |
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(D) a listing of all property over which you have |
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exercised control that includes an adequate description of each |
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asset and the asset's current value, if known to you; |
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(E) the cash balance on hand and the name and |
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location of the depository at which the cash balance is kept; |
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(F) each known liability; |
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(G) any other information and facts known to you |
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as necessary for a full and definite understanding of the exact |
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condition of the property belonging to the principal; and |
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(H) all documentation regarding the principal's |
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property. |
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Termination of Agent's Authority |
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You must stop acting on behalf of the principal if you learn |
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of any event that terminates or suspends this power of attorney or |
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your authority under this power of attorney. An event that |
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terminates this power of attorney or your authority to act under |
|
this power of attorney includes: |
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(1) the principal's death; |
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(2) the principal's revocation of this power of |
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attorney or your authority; |
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(3) the occurrence of a termination event stated in |
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this power of attorney; |
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(4) if you are married to the principal, the |
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dissolution of your marriage by court decree of divorce or |
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annulment; |
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(5) the appointment and qualification of a permanent |
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guardian of the principal's estate unless a court order provides |
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otherwise; or |
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(6) if ordered by a court, your removal as agent |
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(attorney in fact) under this power of attorney. An event that |
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suspends this power of attorney or your authority to act under this |
|
power of attorney is the appointment and qualification of a |
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temporary guardian unless a court order provides otherwise [if
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ordered by a court, the suspension of this power of attorney on the
|
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appointment and qualification of a temporary guardian until the
|
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date the term of the temporary guardian expires]. |
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Liability of Agent |
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The authority granted to you under this power of attorney is |
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specified in the Durable Power of Attorney Act (Subtitle P, Title 2, |
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Estates Code). If you violate the Durable Power of Attorney Act or |
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act beyond the authority granted, you may be liable for any damages |
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caused by the violation or subject to prosecution for |
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misapplication of property by a fiduciary under Chapter 32 of the |
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Texas Penal Code. |
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THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER |
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THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL |
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RESPONSIBILITIES OF AN AGENT. |
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SECTION 5. Subtitle P, Title 2, Estates Code, is amended by |
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adding Chapter 753 to read as follows: |
|
CHAPTER 753. REMOVAL OF ATTORNEY IN FACT OR AGENT |
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Sec. 753.001. PROCEDURE FOR REMOVAL. (a) In this section, |
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"person interested," notwithstanding Section 22.018, has the |
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meaning assigned by Section 1002.018. |
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(b) The following persons may file a petition under this |
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section: |
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(1) any person named as a successor attorney in fact or |
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agent in a durable power of attorney; or |
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(2) if the person with respect to whom a guardianship |
|
proceeding has been commenced is a principal who has executed a |
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durable power of attorney, any person interested in the |
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guardianship proceeding, including an attorney ad litem or guardian |
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ad litem. |
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(c) On the petition of a person described by Subsection (b), |
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a probate court, after a hearing, may enter an order: |
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(1) removing a person named and serving as an attorney |
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in fact or agent under a durable power of attorney; |
|
(2) authorizing the appointment of a successor |
|
attorney in fact or agent who is named in the durable power of |
|
attorney if the court finds that the successor attorney in fact or |
|
agent is willing to accept the authority granted under the power of |
|
attorney; and |
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(3) if compensation is allowed by the terms of the |
|
durable power of attorney, denying all or part of the removed |
|
attorney in fact's or agent's compensation. |
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(d) A court may enter an order under Subsection (c) if the |
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court finds: |
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(1) that the attorney in fact or agent has breached the |
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attorney in fact's or agent's fiduciary duties to the principal; |
|
(2) that the attorney in fact or agent has materially |
|
violated or attempted to violate the terms of the durable power of |
|
attorney and the violation or attempted violation results in a |
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material financial loss to the principal; |
|
(3) that the attorney in fact or agent is |
|
incapacitated or is otherwise incapable of properly performing the |
|
attorney in fact's or agent's duties; or |
|
(4) that the attorney in fact or agent has failed to |
|
make an accounting: |
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(A) that is required by Section 751.104 within |
|
the period prescribed by Section 751.105, by other law, or by the |
|
terms of the durable power of attorney; or |
|
(B) as ordered by the court. |
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Sec. 753.002. NOTICE TO THIRD PARTIES. Not later than the |
|
21st day after the date the court enters an order removing an |
|
attorney in fact or agent and authorizing the appointment of a |
|
successor under Section 753.001, the successor attorney in fact or |
|
agent shall provide actual notice of the order to each third party |
|
that the attorney in fact or agent has reason to believe relied on |
|
or may rely on the durable power of attorney. |
|
SECTION 6. Section 1055.003, Estates Code, is amended by |
|
amending Subsection (a) and adding Subsection (d) to read as |
|
follows: |
|
(a) Notwithstanding the Texas Rules of Civil Procedure and |
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except as provided by Subsection (d), an interested person may |
|
intervene in a guardianship proceeding only by filing a timely |
|
motion to intervene that is served on the parties. |
|
(d) A person who is entitled to receive notice under Section |
|
1051.104 is not required to file a motion under this section to |
|
intervene in a guardianship proceeding. |
|
SECTION 7. Section 1101.002, Estates Code, is amended to |
|
read as follows: |
|
Sec. 1101.002. CONTENTS OF APPLICATION; CONFIDENTIALITY OF |
|
CERTAIN ADDRESSES. An application filed under Section 1101.001 may |
|
omit the address of a person named in the application if: |
|
(1) the application states that the person is or was |
|
protected by a protective order issued under Chapter 85, Family |
|
Code; |
|
(2) a copy of the protective order is attached to the |
|
application as an exhibit; |
|
(3) the application states the county in which the |
|
person resides; |
|
(4) the application indicates the place where notice |
|
to or the issuance and service of citation on the person may be made |
|
or sent; and |
|
(5) the application is accompanied by a request for an |
|
order under Section 1051.201 specifying the manner of issuance, |
|
service, and return of citation or notice on the person. |
|
SECTION 8. Section 1151.051(d), Estates Code, is amended to |
|
read as follows: |
|
(d) Notwithstanding Subsection (c)(4), a guardian of the |
|
person of a ward has the power to personally transport the ward or |
|
to direct the ward's transport by emergency medical services or |
|
other means to an inpatient mental health facility for a |
|
preliminary examination in accordance with Subchapters A and C, |
|
Chapter 573, Health and Safety Code. The guardian shall |
|
immediately provide written notice to the court that granted the |
|
guardianship as required by Section 573.004, Health and Safety |
|
Code, of the filing of an application under that section. |
|
SECTION 9. Section 1357.052, Estates Code, is amended to |
|
read as follows: |
|
Sec. 1357.052. AUTHORITY OF SUPPORTER; NATURE OF |
|
RELATIONSHIP. (a) A supporter may exercise the authority granted |
|
to the supporter in the supported decision-making agreement. |
|
(b) A supporter is in a fiduciary relationship with the |
|
adult with a disability with whom the supporter enters into a |
|
supported decision-making agreement. The supporter owes to the |
|
adult with a disability the duties listed in the form provided by |
|
Section 1357.056(a), regardless of whether that form is used for |
|
the supported decision-making agreement. |
|
(c) The relationship between an adult with a disability and |
|
the supporter with whom the adult enters into a supported |
|
decision-making agreement: |
|
(1) is one of trust and confidence; and |
|
(2) does not undermine the decision-making authority |
|
of the adult. |
|
SECTION 10. Subchapter B, Chapter 1357, Estates Code, is |
|
amended by adding Section 1357.0525 to read as follows: |
|
Sec. 1357.0525. DESIGNATION OF ALTERNATE SUPPORTER IN |
|
CERTAIN CIRCUMSTANCES. In order to prevent a conflict of interest, |
|
if a determination is made by an adult with a disability that the |
|
supporter with whom the adult entered into a supported |
|
decision-making agreement is the most appropriate person to provide |
|
to the adult supports and services for which the supporter will be |
|
compensated, the adult may amend the supported decision-making |
|
agreement to designate an alternate person to act as the adult's |
|
supporter for the limited purpose of participating in |
|
person-centered planning as it relates to the provision of those |
|
supports and services. |
|
SECTION 11. Section 1357.053(b), Estates Code, is amended |
|
to read as follows: |
|
(b) The supported decision-making agreement is terminated |
|
if: |
|
(1) the Department of Family and Protective Services |
|
finds that the adult with a disability has been abused, neglected, |
|
or exploited by the supporter; [or] |
|
(2) the supporter is found criminally liable for |
|
conduct described by Subdivision (1); or |
|
(3) a temporary or permanent guardian of the person or |
|
estate appointed for the adult with a disability qualifies. |
|
SECTION 12. Section 1357.056(a), Estates Code, is amended |
|
to read as follows: |
|
(a) Subject to Subsection (b), a supported decision-making |
|
agreement is valid only if it is in substantially the following |
|
form: |
|
SUPPORTED DECISION-MAKING AGREEMENT |
|
Important Information For Supporter: Duties |
|
When you agree to provide support to an adult with a |
|
disability under this supported decision-making agreement, you |
|
have a duty to: |
|
(1) act in good faith; |
|
(2) act within the authority granted in this |
|
agreement; |
|
(3) act loyally and without self-interest; and |
|
(4) avoid conflicts of interest. |
|
Appointment of Supporter |
|
I, (insert your name), make this agreement of my own free |
|
will. |
|
I agree and designate that: |
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Name: |
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Address: |
|
Phone Number: |
|
E-mail Address: |
|
is my supporter. My supporter may help me with making everyday life |
|
decisions relating to the following: |
|
Y/N obtaining food, clothing, and shelter |
|
Y/N taking care of my physical health |
|
Y/N managing my financial affairs. |
|
My supporter is not allowed to make decisions for me. To help |
|
me with my decisions, my supporter may: |
|
1. Help me access, collect, or obtain information that is |
|
relevant to a decision, including medical, psychological, |
|
financial, educational, or treatment records; |
|
2. Help me understand my options so I can make an informed |
|
decision; or |
|
3. Help me communicate my decision to appropriate persons. |
|
Y/N A release allowing my supporter to see protected |
|
health information under the Health Insurance Portability and |
|
Accountability Act of 1996 (Pub. L. No. 104-191) is attached. |
|
Y/N A release allowing my supporter to see educational |
|
records under the Family Educational Rights and Privacy Act of 1974 |
|
(20 U.S.C. Section 1232g) is attached. |
|
Effective Date of Supported Decision-Making Agreement |
|
This supported decision-making agreement is effective |
|
immediately and will continue until (insert date) or until the |
|
agreement is terminated by my supporter or me or by operation of |
|
law. |
|
Signed this ______ day of _________, 20___ |
|
Consent of Supporter |
|
I, (name of supporter), consent to act as a supporter under |
|
this agreement. |
|
|
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(signature of supporter)(printed name of supporter) |
|
Signature |
|
|
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(my signature)(my printed name) |
|
|
|
(witness 1 signature)(printed name of witness 1) |
|
|
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(witness 2 signature)(printed name of witness 2) |
|
State of |
|
County of |
|
This document was acknowledged before me |
|
on _______________________________ (date) |
|
by _______________________________ and _______________________ |
|
(name of adult with a disability)(name of supporter) |
|
|
|
(signature of notarial officer) |
|
(Seal, if any, of notary) |
|
(printed name) |
|
My commission expires: |
|
WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY |
|
IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE |
|
OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT THE |
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ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR EXPLOITED BY |
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THE SUPPORTER, THE PERSON SHALL REPORT THE ALLEGED ABUSE, NEGLECT, |
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OR EXPLOITATION TO THE DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES |
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BY CALLING THE ABUSE HOTLINE AT 1-800-252-5400 OR ONLINE AT |
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WWW.TXABUSEHOTLINE.ORG. |
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SECTION 13. (a) Sections 751.052, 751.054(a), and |
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751.055(a), Estates Code, as amended by this Act, and Chapter 753, |
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Estates Code, as added by this Act, apply to a durable power of |
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attorney, including a statutory durable power of attorney, executed |
|
before, on, or after the effective date of this Act. |
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(b) Section 752.051, Estates Code, as amended by this Act, |
|
applies to a statutory durable power of attorney executed on or |
|
after the effective date of this Act. A statutory durable power of |
|
attorney executed before the effective date of this Act is governed |
|
by the law as it existed on the date the statutory durable power of |
|
attorney was executed, and the former law is continued in effect for |
|
that purpose. |
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(c) Section 1055.003, Estates Code, as amended by this Act, |
|
applies to a guardianship proceeding that is pending or commenced |
|
on or after the effective date of this Act. |
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(d) Section 1101.002, Estates Code, as amended by this Act, |
|
applies to an application for a guardianship filed on or after the |
|
effective date of this Act. |
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(e) Sections 1357.052 and 1357.053(b), Estates Code, as |
|
amended by this Act, and Section 1357.0525, Estates Code, as added |
|
by this Act, apply to a supported decision-making agreement entered |
|
into before, on, or after the effective date of this Act. |
|
(f) Section 1357.056(a), Estates Code, as amended by this |
|
Act, applies to a supported decision-making agreement entered into |
|
on or after the effective date of this Act. A supported |
|
decision-making agreement entered into before the effective date of |
|
this Act is governed by the law as it existed on the date the |
|
supported decision-making agreement was entered into, and the |
|
former law is continued in effect for that purpose. |
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SECTION 14. This Act takes effect September 1, 2017. |
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* * * * * |