Texas 2013 - 83rd Regular

Texas House Bill HB2918 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	By: Thompson of Harris (Senate Sponsor - Rodriguez) H.B. No. 2918
2	2	(In the Senate - Received from the House May 3, 2013;
3	3	May 6, 2013, read first time and referred to Committee on
4	4	Jurisprudence; May 20, 2013, reported favorably by the following
5	5	vote: Yeas 4, Nays 0; May 20, 2013, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to statutory durable powers of attorney.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 752.051, Estates Code, as effective
13	13	January 1, 2014, is amended to read as follows:
14	14	Sec. 752.051. FORM. The following form is known as a
15	15	"statutory durable power of attorney":
16	16	STATUTORY DURABLE POWER OF ATTORNEY
17	17	NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND
18	18	SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT,
19	19	SUBTITLE P, TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT
20	20	THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES
21	21	NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE
22	22	DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU
23	23	LATER WISH TO DO SO.
24	24	You should select someone you trust to serve as your agent
25	25	(attorney in fact). Unless you specify otherwise, generally the
26	26	agent's (attorney in fact's) authority will continue until:
27	27	(1) you die or revoke the power of attorney;
28	28	(2) your agent (attorney in fact) resigns or is unable
29	29	to act for you; or
30	30	(3) a guardian is appointed for your estate.
31	31	I, __________ (insert your name and address), appoint
32	32	__________ (insert the name and address of the person appointed) as
33	33	my agent (attorney in fact) to act for me in any lawful way with
34	34	respect to all of the following powers that I have initialed below.
35	35	TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN
36	36	FRONT OF (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS
37	37	LISTED IN (A) THROUGH (M).
38	38	TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
39	39	POWER YOU ARE GRANTING.
40	40	TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
41	41	POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD
42	42	[except for a power that I have crossed out below.
43	43	[TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER
44	44	WITHHELD].
45	45	____ (A) Real property transactions;
46	46	____ (B) Tangible personal property transactions;
47	47	____ (C) Stock and bond transactions;
48	48	____ (D) Commodity and option transactions;
49	49	____ (E) Banking and other financial institution
50	50	transactions;
51	51	____ (F) Business operating transactions;
52	52	____ (G) Insurance and annuity transactions;
53	53	____ (H) Estate, trust, and other beneficiary transactions;
54	54	____ (I) Claims and litigation;
55	55	____ (J) Personal and family maintenance;
56	56	____ (K) Benefits from social security, Medicare, Medicaid,
57	57	or other governmental programs or civil or military service;
58	58	____ (L) Retirement plan transactions;
59	59	____ (M) Tax matters;
60	60	____ (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU DO
61	61	NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU
62	62	INITIAL LINE (N).
63	63	[IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL
64	64	BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY
65	65	AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO
66	66	PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I
67	67	WERE PERSONALLY PRESENT.]
68	68	SPECIAL INSTRUCTIONS:
69	69	Special instructions applicable to gifts (initial in front of
70	70	the following sentence to have it apply):
71	71	____ I grant my agent (attorney in fact) the power to apply my
72	72	property to make gifts outright to or for the benefit of a person,
73	73	including by the exercise of a presently exercisable general power
74	74	of appointment held by me, except that the amount of a gift to an
75	75	individual may not exceed the amount of annual exclusions allowed
76	76	from the federal gift tax for the calendar year of the gift.
77	77	ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
78	78	LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
79	79	________________________________________________________________
80	80	________________________________________________________________
81	81	________________________________________________________________
82	82	________________________________________________________________
83	83	________________________________________________________________
84	84	________________________________________________________________
85	85	________________________________________________________________
86	86	________________________________________________________________
87	87	________________________________________________________________
88	88	UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
89	89	EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
90	90	CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
91	91	ALTERNATIVE NOT CHOSEN:
92	92	(A) This power of attorney is not affected by my subsequent
93	93	disability or incapacity.
94	94	(B) This power of attorney becomes effective upon my
95	95	disability or incapacity.
96	96	YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
97	97	IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
98	98	IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
99	99	YOU CHOSE ALTERNATIVE (A).
100	100	If Alternative (B) is chosen and a definition of my
101	101	disability or incapacity is not contained in this power of
102	102	attorney, I shall be considered disabled or incapacitated for
103	103	purposes of this power of attorney if a physician certifies in
104	104	writing at a date later than the date this power of attorney is
105	105	executed that, based on the physician's medical examination of me,
106	106	I am mentally incapable of managing my financial affairs. I
107	107	authorize the physician who examines me for this purpose to
108	108	disclose my physical or mental condition to another person for
109	109	purposes of this power of attorney. A third party who accepts this
110	110	power of attorney is fully protected from any action taken under
111	111	this power of attorney that is based on the determination made by a
112	112	physician of my disability or incapacity.
113	113	I agree that any third party who receives a copy of this
114	114	document may act under it. Revocation of the durable power of
115	115	attorney is not effective as to a third party until the third party
116	116	receives actual notice of the revocation. I agree to indemnify the
117	117	third party for any claims that arise against the third party
118	118	because of reliance on this power of attorney.
119	119	If any agent named by me dies, becomes legally disabled,
120	120	resigns, or refuses to act, I name the following (each to act alone
121	121	and successively, in the order named) as successor(s) to that
122	122	agent: __________.
123	123	Signed this ______ day of __________, _____________
124	124	___________________________
125	125	(your signature)
126	126	State of _______________________
127	127	County of ______________________
128	128	This document was acknowledged before me on ____________(date) by
129	129	________________________
130	130	(name of principal)
131	131	______________________________
132	132	(signature of notarial officer)
133	133	(Seal, if any, of notary) ________________________________________
134	134	(printed name)
135	135	My commission expires: ______________
136	136	IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)
137	137	Agent's Duties
138	138	When you accept the authority granted under this power of
139	139	attorney, you establish a "fiduciary" relationship with the
140	140	principal. This is a special legal relationship that imposes on you
141	141	legal duties that continue until you resign or the power of attorney
142	142	is terminated or revoked by the principal or by operation of law. A
143	143	fiduciary duty generally includes the duty to:
144	144	(1) act in good faith;
145	145	(2) do nothing beyond the authority granted in this
146	146	power of attorney;
147	147	(3) act loyally for the principal's benefit;
148	148	(4) avoid conflicts that would impair your ability to
149	149	act in the principal's best interest; and
150	150	(5) disclose your identity as an agent or attorney in
151	151	fact when you act for the principal by writing or printing the name
152	152	of the principal and signing your own name as "agent" or "attorney
153	153	in fact" in the following manner:
154	154	(Principal's Name) by (Your Signature) as Agent (or as
155	155	Attorney in Fact)
156	156	In addition, the Durable Power of Attorney Act (Subtitle P,
157	157	Title 2, Estates Code) requires you to:
158	158	(1) maintain records of each action taken or decision
159	159	made on behalf of the principal;
160	160	(2) maintain all records until delivered to the
161	161	principal, released by the principal, or discharged by a court; and
162	162	(3) if requested by the principal, provide an
163	163	accounting to the principal that, unless otherwise directed by the
164	164	principal or otherwise provided in the Special Instructions, must
165	165	include:
166	166	(A) the property belonging to the principal that
167	167	has come to your knowledge or into your possession;
168	168	(B) each action taken or decision made by you as
169	169	agent or attorney in fact;
170	170	(C) a complete account of receipts,
171	171	disbursements, and other actions of you as agent or attorney in fact
172	172	that includes the source and nature of each receipt, disbursement,
173	173	or action, with receipts of principal and income shown separately;
174	174	(D) a listing of all property over which you have
175	175	exercised control that includes an adequate description of each
176	176	asset and the asset's current value, if known to you;
177	177	(E) the cash balance on hand and the name and
178	178	location of the depository at which the cash balance is kept;
179	179	(F) each known liability;
180	180	(G) any other information and facts known to you
181	181	as necessary for a full and definite understanding of the exact
182	182	condition of the property belonging to the principal; and
183	183	(H) all documentation regarding the principal's
184	184	property.
185	185	Termination of Agent's Authority
186	186	You must stop acting on behalf of the principal if you learn
187	187	of any event that terminates this power of attorney or your
188	188	authority under this power of attorney. An event that terminates
189	189	this power of attorney or your authority to act under this power of
190	190	attorney includes:
191	191	(1) the principal's death;
192	192	(2) the principal's revocation of this power of
193	193	attorney or your authority;
194	194	(3) the occurrence of a termination event stated in
195	195	this power of attorney;
196	196	(4) if you are married to the principal, the
197	197	dissolution of your marriage by court decree of divorce or
198	198	annulment;
199	199	(5) the appointment and qualification of a permanent
200	200	guardian of the principal's estate; or
201	201	(6) if ordered by a court, the suspension of this power
202	202	of attorney on the appointment and qualification of a temporary
203	203	guardian until the date the term of the temporary guardian expires.
204	204	Liability of Agent
205	205	The authority granted to you under this power of attorney is
206	206	specified in the Durable Power of Attorney Act (Subtitle P, Title 2,
207	207	Estates Code). If you violate the Durable Power of Attorney Act or
208	208	act beyond the authority granted, you may be liable for any damages
209	209	caused by the violation or subject to prosecution for
210	210	misapplication of property by a fiduciary under Chapter 32 of the
211	211	Texas Penal Code.
212	212	THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
213	213	THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
214	214	RESPONSIBILITIES OF AN AGENT.
215	215	SECTION 2. Section 752.002, Estates Code, as effective
216	216	January 1, 2014, is amended to read as follows:
217	217	Sec. 752.002. VALIDITY NOT AFFECTED. A power of attorney is
218	218	valid with respect to meeting the requirements for a statutory
219	219	durable power of attorney regardless of the fact that:
220	220	(1) one or more of the categories of optional powers
221	221	listed in the form prescribed by Section 752.051 are not initialed
222	222	[struck]; or
223	223	(2) the form includes specific limitations on, or
224	224	additions to, the powers of the attorney in fact or agent.
225	225	SECTION 3. The changes in law made by this Act apply only to
226	226	a power of attorney executed on or after the effective date of this
227	227	Act. A power of attorney executed before the effective date of this
228	228	Act is governed by the law in effect on the date the power of
229	229	attorney was executed, and that law is continued in effect for that
230	230	purpose.
231	231	SECTION 4. This Act takes effect January 1, 2014.
232	232	* * * * *