By: Guillen H.B. No. 2331
Substitute the following for H.B. No. 2331:
By: Leibowitz C.S.H.B. No. 2331
A BILL TO BE ENTITLED
AN ACT
relating to the acknowledgment of an agent's or attorney in fact's
duties under a durable power of attorney.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter XII, Texas Probate Code, is amended by
adding Section 489C to read as follows:
Sec. 489C. NOTICE REGARDING FIDUCIARY AND OTHER LEGAL
RESPONSIBILITIES OF ATTORNEY IN FACT OR AGENT. (a) An attorney in
fact or agent at the time authority conferred by a durable power of
attorney is exercised by the attorney in fact or agent for a
transaction of $1,000 or more must provide to the financial
institution or other person to whom the durable power of attorney is
provided the following written notice, in substantially the
following form:
"NOTICE
THE ATTORNEY IN FACT OR AGENT UNDERSTANDS THAT, BY ACCEPTING
THE APPOINTMENT, THE ATTORNEY IN FACT OR AGENT ASSUMES THE
FOLLOWING FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT:
I, ________ (insert your name and address), accept the
following responsibilities and obligations as an agent (attorney in
fact) of ________ (insert the name and address of the principal):
I am a fiduciary and have a duty to inform and to account for
actions taken under the power of attorney.
I shall timely inform the principal of all actions taken
under the power of attorney. Failure to inform timely, as to third
parties, does not invalidate any action taken by me as the agent or
attorney in fact.
I shall maintain records of each action taken or decision
made by me as the agent or attorney in fact.
The principal may demand an accounting of my actions as the
agent or attorney in fact. Unless otherwise directed by the
principal, the accounting must include:
(1) a description of the property belonging to the
principal that has come to the agent's or attorney in fact's
knowledge or into the agent's or attorney in fact's possession;
(2) a description of all actions taken or decisions
made by me as the agent or attorney in fact;
(3) a complete account of receipts, disbursements, and
other actions as the agent or attorney in fact, including their
source and nature, with receipts of principal and income shown
separately;
(4) a listing of all property over which I, as the
agent or attorney in fact, have exercised control, with an adequate
description of each asset and its current value if known to me as
the agent or attorney in fact;
(5) a statement of the cash balance on hand and the
name and location of the depository where the balance is kept;
(6) a statement of all known liabilities; and
(7) other information and facts known to me as the
agent or attorney in fact as may be necessary to a full and definite
understanding of the exact condition of the property belonging to
the principal.
Unless directed otherwise by the principal, I shall provide
to the principal all documentation regarding the principal's
property.
I shall maintain all records until delivered to the
principal, released by the principal, or discharged by a court.
If I fail or refuse to inform the principal, provide
documentation, or deliver the accounting within 60 days (or a
longer or shorter time that the principal demands or a court may
order), the principal may file suit to compel me to deliver the
accounting, to deliver the assets, or to terminate the power of
attorney.
Wherever in Chapter XII, Texas Probate Code, a principal is
given an authority to act, that authority includes not only the
principal but also any person designated by the principal, a
guardian of the estate of the principal, or other personal
representative of the principal.
The rights set out in Chapter XII, Texas Probate Code, are
cumulative of any other rights or remedies the principal may have at
common law or other applicable statutes and not in derogation of
those rights.
Signed this __ day of ____, 20__
______________________________
(signature of agent or attorney in
fact)
State of _________________
County of ________________
This document was acknowledged before me on ________________ (date)
by ____________________________ and _____________________________
(name of principal) (name of agent (or attorney in fact))
______________________________
(signature of notarial officer)
(Seal, if any, of notary) ________________________________________
(printed name)
My commission expires: ____________ ".
(b) A written notice complies with the requirements of
Subsection (a) of this section if:
(1) the wording of the notice complies substantially
with the wording of the form prescribed by Subsection (a) of this
section;
(2) the notice is properly completed and signed by the
attorney in fact or agent; and
(3) the signature of the attorney in fact or agent is
acknowledged.
SECTION 2. This Act takes effect September 1, 2009.