By: Thompson of Harris (Senate Sponsor - Rodriguez) H.B. No. 2918
(In the Senate - Received from the House May 3, 2013;
May 6, 2013, read first time and referred to Committee on
Jurisprudence; May 20, 2013, reported favorably by the following
vote: Yeas 4, Nays 0; May 20, 2013, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to statutory durable powers of attorney.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 752.051, Estates Code, as effective
January 1, 2014, 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 (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS
LISTED IN (A) THROUGH (M).
TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
POWER YOU ARE GRANTING.
TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD
[except for a power that I have crossed out below.
[TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER
WITHHELD].
____ (A) Real property transactions;
____ (B) Tangible personal property transactions;
____ (C) Stock and bond transactions;
____ (D) Commodity and option transactions;
____ (E) Banking and other financial institution
transactions;
____ (F) Business operating transactions;
____ (G) Insurance and annuity transactions;
____ (H) Estate, trust, and other beneficiary transactions;
____ (I) Claims and litigation;
____ (J) Personal and family maintenance;
____ (K) Benefits from social security, Medicare, Medicaid,
or other governmental programs or civil or military service;
____ (L) Retirement plan transactions;
____ (M) Tax matters;
____ (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU DO
NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU
INITIAL LINE (N).
[IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL
BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY
AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO
PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I
WERE PERSONALLY PRESENT.]
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 2. Section 752.002, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 752.002. VALIDITY NOT AFFECTED. A power of attorney is
valid with respect to meeting the requirements for a statutory
durable power of attorney regardless of the fact that:
(1) one or more of the categories of optional powers
listed in the form prescribed by Section 752.051 are not initialed
[struck]; or
(2) the form includes specific limitations on, or
additions to, the powers of the attorney in fact or agent.
SECTION 3. The changes in law made by this Act apply only to
a power of attorney executed on or after the effective date of this
Act. A power of attorney executed before the effective date of this
Act is governed by the law in effect on the date the power of
attorney was executed, and that law is continued in effect for that
purpose.
SECTION 4. This Act takes effect January 1, 2014.
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