Texas 2009 - 81st Regular

Texas House Bill HB2331 Compare Versions

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1	1	81R8671 CLG-F
2	2	By: Guillen H.B. No. 2331
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the requirements of a durable power of attorney and the
8	8	acknowledgment of an agent's or attorney in fact's duties under a
9	9	durable power of attorney.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 482, Texas Probate Code, is amended to
12	12	read as follows:
13	13	Sec. 482. DEFINITION. A "durable power of attorney" means a
14	14	written instrument that:
15	15	(1) designates another person as attorney in fact or
16	16	agent;
17	17	(2) is signed by an adult principal and designated
18	18	attorney in fact or agent;
19	19	(3) contains the words "This power of attorney is not
20	20	affected by subsequent disability or incapacity of the principal,"
21	21	or "This power of attorney becomes effective on the disability or
22	22	incapacity of the principal," or similar words showing the
23	23	principal's intent that the authority conferred on the attorney in
24	24	fact or agent shall be exercised notwithstanding the principal's
25	25	subsequent disability or incapacity; and
26	26	(4) is acknowledged by the principal and designated
27	27	attorney in fact or agent before an officer authorized to take
28	28	acknowledgments to deeds of conveyance and to administer oaths
29	29	under the laws of this state or any other state.
30	30	SECTION 2. Section 490, Texas Probate Code, is amended to
31	31	read as follows:
32	32	Sec. 490. STATUTORY DURABLE POWER OF ATTORNEY. (a) The
33	33	following form is known as a "statutory durable power of attorney."
34	34	A person may use a statutory durable power of attorney to grant an
35	35	attorney in fact or agent powers with respect to a person's property
36	36	and financial matters. A power of attorney in substantially the
37	37	following form has the meaning and effect prescribed by this
38	38	chapter. The validity of a power of attorney as meeting the
39	39	requirements of a statutory durable power of attorney is not
40	40	affected by the fact that one or more of the categories of optional
41	41	powers listed in the form are struck or the form includes specific
42	42	limitations on or additions to the attorney in fact's or agent's
43	43	powers.
44	44	The following form is not exclusive, and other forms of power
45	45	of attorney may be used.
46	46	STATUTORY DURABLE POWER OF ATTORNEY
47	47	NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND
48	48	SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT,
49	49	CHAPTER XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT
50	50	THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES
51	51	NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE
52	52	DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU
53	53	LATER WISH TO DO SO.
54	54	I, ________ (insert your name and address), appoint ________
55	55	(insert the name and address of the person appointed) as my agent
56	56	(attorney-in-fact) to act for me in any lawful way with respect to
57	57	all of the following powers except for a power that I have crossed
58	58	out below.
59	59	TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER WITHHELD.
60	60	Real property transactions;
61	61	Tangible personal property transactions;
62	62	Stock and bond transactions;
63	63	Commodity and option transactions;
64	64	Banking and other financial institution transactions;
65	65	Business operating transactions;
66	66	Insurance and annuity transactions;
67	67	Estate, trust, and other beneficiary transactions;
68	68	Claims and litigation;
69	69	Personal and family maintenance;
70	70	Benefits from social security, Medicare, Medicaid, or other
71	71	governmental programs or civil or military service;
72	72	Retirement plan transactions;
73	73	Tax matters.
74	74	IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL
75	75	BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY
76	76	AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO
77	77	PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I
78	78	WERE PERSONALLY PRESENT.
79	79	SPECIAL INSTRUCTIONS:
80	80	Special instructions applicable to gifts (initial in front of
81	81	the following sentence to have it apply):
82	82	I grant my agent (attorney in fact) the power to apply my
83	83	property to make gifts, except that the amount of a gift to an
84	84	individual may not exceed the amount of annual exclusions allowed
85	85	from the federal gift tax for the calendar year of the gift.
86	86	ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
87	87	LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
88	88	_______________________________________________________________
89	89	_______________________________________________________________
90	90	_______________________________________________________________
91	91	_______________________________________________________________
92	92	_______________________________________________________________
93	93	_______________________________________________________________
94	94	_______________________________________________________________
95	95	_______________________________________________________________
96	96	_______________________________________________________________
97	97	THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING THE APPOINTMENT,
98	98	ASSUMES THE FOLLOWING FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF
99	99	AN AGENT.
100	100	I, ________ (insert your name and address), accept the
101	101	following responsibilities and obligations as an agent (attorney in
102	102	fact) of ________ (insert the name and address of the principal):
103	103	I am a fiduciary and have a duty to inform and to account for
104	104	actions taken pursuant to the power of attorney.
105	105	I shall timely inform the principal of all actions taken
106	106	pursuant to the power of attorney. Failure to inform timely, as to
107	107	third parties, does not invalidate any action taken by me as the
108	108	agent or attorney in fact.
109	109	I shall maintain records of each action taken or decision
110	110	made by me as the agent or attorney in fact.
111	111	The principal may demand an accounting of my actions as the
112	112	agent or attorney in fact. Unless otherwise directed by the
113	113	principal, the accounting shall include:
114	114	(1) the property belonging to the principal that has
115	115	come to the agent's or attorney in fact's knowledge or into the
116	116	agent's or attorney in fact's possession;
117	117	(2) all actions taken or decisions made by me as the
118	118	agent or attorney in fact;
119	119	(3) a complete account of receipts, disbursements, and
120	120	other actions as the agent or attorney in fact, including their
121	121	source and nature, with receipts of principal and income shown
122	122	separately;
123	123	(4) a listing of all property over which I, as the
124	124	agent or attorney in fact, have exercised control, with an adequate
125	125	description of each asset and its current value if known to me as
126	126	the agent or attorney in fact;
127	127	(5) the cash balance on hand and the name and location
128	128	of the depository where the balance is kept;
129	129	(6) all known liabilities; and
130	130	(7) such other information and facts known to me as the
131	131	agent or attorney in fact as may be necessary to a full and definite
132	132	understanding of the exact condition of the property belonging to
133	133	the principal.
134	134	Unless directed otherwise by the principal, I shall also
135	135	provide to the principal all documentation regarding the
136	136	principal's property.
137	137	I shall maintain all records until delivered to the
138	138	principal, released by the principal, or discharged by a court.
139	139	If I fail or refuse to inform the principal, provide
140	140	documentation, or deliver the accounting within 60 days (or such
141	141	longer or shorter time that the principal demands or a court may
142	142	order), the principal may file suit to compel me to deliver the
143	143	accounting, to deliver the assets, or to terminate the power of
144	144	attorney.
145	145	Wherever in this chapter a principal is given an authority to
146	146	act, that shall include not only the principal but also any person
147	147	designated by the principal, a guardian of the estate of the
148	148	principal, or other personal representative of the principal.
149	149	The rights set out in this section and chapter are cumulative
150	150	of any other rights or remedies the principal may have at common law
151	151	or other applicable statutes and not in derogation of those rights.
152	152	Signed this __ day of ____, 20__
153	153	______________________________
154	154	(signature of agent or attorney in
155	155	fact)
156	156	UNLESS YOU AS PRINCIPAL DIRECT OTHERWISE ABOVE, THIS POWER OF
157	157	ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS
158	158	REVOKED.
159	159	CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
160	160	ALTERNATIVE NOT CHOSEN:
161	161	(A) This power of attorney is not affected by my subsequent
162	162	disability or incapacity.
163	163	(B) This power of attorney becomes effective upon my
164	164	disability or incapacity.
165	165	YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
166	166	IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
167	167	IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
168	168	YOU CHOSE ALTERNATIVE (A).
169	169	If Alternative (B) is chosen and a definition of my
170	170	disability or incapacity is not contained in this power of
171	171	attorney, I shall be considered disabled or incapacitated for
172	172	purposes of this power of attorney if a physician certifies in
173	173	writing at a date later than the date this power of attorney is
174	174	executed that, based on the physician's medical examination of me,
175	175	I am mentally incapable of managing my financial affairs. I
176	176	authorize the physician who examines me for this purpose to
177	177	disclose my physical or mental condition to another person for
178	178	purposes of this power of attorney. A third party who accepts this
179	179	power of attorney is fully protected from any action taken under
180	180	this power of attorney that is based on the determination made by a
181	181	physician of my disability or incapacity.
182	182	I agree that any third party who receives a copy of this
183	183	document may act under it. Revocation of the durable power of
184	184	attorney is not effective as to a third party until the third party
185	185	receives actual notice of the revocation. I agree to indemnify the
186	186	third party for any claims that arise against the third party
187	187	because of reliance on this power of attorney.
188	188	[If any agent named by me dies, becomes legally disabled,
189	189	resigns, or refuses to act, I name the following (each to act alone
190	190	and successively, in the order named) as successor(s) to that
191	191	agent: ________.]
192	192	Signed this ____ day of ______, 20__ [19__]
193	193	_________________________
194	194	([your] signature of
195	195	principal)
196	196	State of _________________
197	197	County of ________________
198	198	This document was acknowledged before me on _______________ (date)
199	199	by ___________________and _________________________
200	200	(name of principal)(name of agent (or attorney in
201	201	fact))
202	202	______________________________
203	203	(signature of notarial officer)
204	204	(Seal, if any, of notary) ________________________________________
205	205	(printed name)
206	206	My commission expires: ____________
207	207	[THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
208	208	THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
209	209	RESPONSIBILITIES OF AN AGENT.]
210	210	(b) A statutory durable power of attorney is legally
211	211	sufficient under this chapter if the wording of the form complies
212	212	substantially with Subsection (a) of this section, the form is
213	213	properly completed, and the signatures [signature] of the principal
214	214	and agent or attorney in fact are [is] acknowledged.
215	215	SECTION 3. Section 491, Texas Probate Code, is amended to
216	216	read as follows:
217	217	Sec. 491. CONSTRUCTION OF POWERS GENERALLY. The principal
218	218	and attorney in fact or agent, by executing a statutory durable
219	219	power of attorney that confers authority with respect to any class
220	220	of transactions, empowers the attorney in fact or agent for that
221	221	class of transactions to:
222	222	(1) demand, receive, and obtain by litigation, action,
223	223	or otherwise any money or other thing of value to which the
224	224	principal is, may become, or may claim to be entitled;
225	225	(2) conserve, invest, disburse, or use any money or
226	226	other thing of value received on behalf of the principal for the
227	227	purposes intended;
228	228	(3) contract in any manner with any person, on terms
229	229	agreeable to the attorney in fact or agent, to accomplish a purpose
230	230	of a transaction and perform, rescind, reform, release, or modify
231	231	the contract or another contract made by or on behalf of the
232	232	principal;
233	233	(4) execute, acknowledge, seal, and deliver a deed,
234	234	revocation, mortgage, lease, notice, check, release, or other
235	235	instrument the agent considers desirable to accomplish a purpose of
236	236	a transaction;
237	237	(5) prosecute, defend, submit to arbitration, settle,
238	238	and propose or accept a compromise with respect to a claim existing
239	239	in favor of or against the principal or intervene in an action or
240	240	litigation relating to the claim;
241	241	(6) seek on the principal's behalf the assistance of a
242	242	court to carry out an act authorized by the power of attorney;
243	243	(7) engage, compensate, and discharge an attorney,
244	244	accountant, expert witness, or other assistant;
245	245	(8) keep appropriate records of each transaction,
246	246	including an accounting of receipts and disbursements;
247	247	(9) prepare, execute, and file a record, report, or
248	248	other document the attorney in fact or agent considers necessary or
249	249	desirable to safeguard or promote the principal's interest under a
250	250	statute or governmental regulation;
251	251	(10) reimburse the attorney in fact or agent for
252	252	expenditures made in exercising the powers granted by the durable
253	253	power of attorney; and
254	254	(11) in general, do any other lawful act that the
255	255	principal may do with respect to a transaction.
256	256	SECTION 4. This Act applies only to a durable power of
257	257	attorney that is executed on or after the effective date of this
258	258	Act. A durable power of attorney that is executed before the
259	259	effective date of this Act is governed by the law in effect on the
260	260	date the power of attorney was executed, and the former law is
261	261	continued in effect for that purpose.
262	262	SECTION 5. This Act takes effect September 1, 2009.