84R27528 CLG/SCL-F
By: Thompson of Harris H.B. No. 3095
Substitute the following for H.B. No. 3095:
By: Thompson of Harris C.S.H.B. No. 3095
A BILL TO BE ENTITLED
AN ACT
relating to durable powers of attorney and advance directives;
affecting laws subject to criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. DURABLE POWERS OF ATTORNEY
SECTION 1.01. Subchapter A, Chapter 751, Estates Code, is
amended by adding Section 751.0015 to read as follows:
Sec. 751.0015. APPLICABILITY. This subtitle applies to all
durable powers of attorney except:
(1) a power of attorney to the extent it is coupled
with an interest in the subject of that power, including a power of
attorney given to or for the benefit of a creditor in connection
with a credit transaction;
(2) a proxy or other delegation to exercise voting
rights or management rights with respect to an entity; or
(3) a power of attorney created on a form prescribed by
a government or governmental subdivision, agency, or
instrumentality for a governmental purpose.
SECTION 1.02. Section 751.002, Estates Code, is amended to
read as follows:
Sec. 751.002. DEFINITIONS [DEFINITION] OF DURABLE POWER OF
ATTORNEY AND AGENT. (a) A "durable power of attorney" means a
written instrument that:
(1) designates another person as [attorney in fact or]
agent;
(2) is signed by an adult principal or in the adult
principal's conscious presence by another individual directed by
the principal to sign the principal's name on the durable power of
attorney;
(3) contains:
(A) the words:
(i) "This power of attorney is not affected
by subsequent disability or incapacity of the principal"; or
(ii) "This power of attorney becomes
effective on the disability or incapacity of the principal"; or
(B) words similar to those of Paragraph (A) that
show the principal's intent that the authority conferred on the
[attorney in fact or] agent shall be exercised notwithstanding the
principal's subsequent disability or incapacity; and
(4) is acknowledged by the principal before an officer
authorized under the laws of this state or another state to:
(A) take acknowledgments to deeds of conveyance;
and
(B) administer oaths.
(b) If the law of the jurisdiction that determines the
meaning and effect of a power of attorney under Section 751.009
provides that the authority conferred on the agent is exercisable
notwithstanding the principal's subsequent disability or
incapacity, the power of attorney is considered a durable power of
attorney under this subtitle.
(c) In this subtitle, the term "agent" includes an "attorney
in fact."
SECTION 1.03. Subchapter A, Chapter 751, Estates Code, is
amended by adding Sections 751.007, 751.008, 751.009, 751.010,
751.011, 751.012, and 751.013 to read as follows:
Sec. 751.007. PRESUMPTION OF GENUINE SIGNATURE. A
signature that purports to be the signature of the principal on a
durable power of attorney is presumed to be genuine, and the durable
power of attorney is presumed to have been executed under Section
751.002 if the officer taking the acknowledgment has complied with
the requirements of Section 121.004(b), Civil Practice and Remedies
Code.
Sec. 751.008. VALIDITY OF POWER OF ATTORNEY. (a) A durable
power of attorney executed in this state is valid if the execution
of the instrument complies with Section 751.002.
(b) A durable power of attorney executed in a jurisdiction
other than this state is valid in this state if, when executed, the
execution of the durable power of attorney complied with:
(1) the law of the jurisdiction that determines the
meaning and effect of the durable power of attorney as provided by
Section 751.009; or
(2) the requirements for a military power of attorney
as provided by 10 U.S.C. Section 1044b.
(c) Except as otherwise provided by statute other than this
subtitle, a photocopy or electronically transmitted copy of an
original durable power of attorney has the same effect as the
original instrument and may be relied on by a person who is
requested to accept the durable power of attorney, without
liability, to the same extent as the original instrument.
Sec. 751.009. MEANING AND EFFECT OF DURABLE POWER OF
ATTORNEY. The meaning and effect of a durable power of attorney is
determined by the law of the jurisdiction indicated in the durable
power of attorney and, in the absence of an indication of
jurisdiction, by:
(1) the law of the jurisdiction of the principal's
domicile, if the principal's domicile is indicated in the power of
attorney; or
(2) the law of the jurisdiction in which the durable
power of attorney was executed, if the principal's domicile is not
indicated in the power of attorney.
Sec. 751.010. JUDICIAL RELIEF. (a) The following may bring
an action in which a court is requested to construe a durable power
of attorney or review the agent's conduct and grant appropriate
relief:
(1) the principal or the agent;
(2) a guardian, conservator, or other fiduciary acting
for the principal;
(3) a person named as a beneficiary to receive any
property, benefit, or contractual right on the principal's death;
(4) a governmental agency having regulatory authority
to protect the welfare of the principal; and
(5) a person who demonstrates to the court sufficient
interest in the principal's welfare or estate.
(b) A person who is requested to accept a durable power of
attorney may bring an action in a court for declaratory relief to
construe the durable power of attorney.
(c) On motion by the principal, the court shall dismiss an
action filed under this section unless the court finds that the
principal lacks capacity to revoke the agent's authority or the
durable power of attorney.
Sec. 751.011. ACCEPTANCE OF APPOINTMENT AS AGENT. Except
as otherwise provided in the durable power of attorney, a person
accepts appointment as an agent under a durable power of attorney by
exercising authority or performing duties as an agent or by any
other assertion or conduct indicating acceptance of the
appointment.
Sec. 751.012. CO-AGENTS AND SUCCESSOR AGENTS. (a) A
principal may designate two or more persons to act as co-agents.
Unless the durable power of attorney otherwise provides, the
co-agents must act jointly.
(b) A principal may designate one or more successor agents
to act if an agent resigns, dies, or becomes incapacitated, is not
qualified to serve, or declines to serve. A principal may grant
authority to designate one or more successor agents to an agent or
other person designated by name, office, or function. Unless the
durable power of attorney otherwise provides, a successor agent:
(1) has the same authority as the authority granted to
the predecessor agent; and
(2) is not considered an agent under this subtitle and
may not act until all predecessor agents to the successor agent have
resigned, died, or become incapacitated, are not or are no longer
qualified to serve, or have declined to serve.
(c) If the principal has designated co-agents and one or
more successor agents for a specified co-agent:
(1) the authority granted to a successor agent is the
same as the authority granted to the predecessor co-agent whom the
successor agent is designated to succeed; and
(2) the specified co-agent is considered an agent
under this subtitle and may act in that capacity only when the
predecessor co-agent whom the successor agent is designated to
succeed has died, becomes incapacitated, resigns, is not or is no
longer qualified to serve, or has declined to serve.
(d) Except as otherwise provided by Subsection (e) or the
durable power of attorney, an agent who does not participate in or
conceal a breach of fiduciary duty committed by another agent,
including a predecessor agent, is not liable for the actions of the
other agent.
(e) An agent who has actual knowledge of a breach or
imminent breach of fiduciary duty by another agent shall notify the
principal and, if the principal is incapacitated, shall take any
action reasonably appropriate under the circumstances to safeguard
the principal's best interest. An agent who fails to notify the
principal or take action as required by this subsection is liable
for the reasonably foreseeable damages that could have been avoided
if the agent had notified the principal or taken the action.
Sec. 751.013. REIMBURSEMENT AND COMPENSATION OF AGENT.
Unless the durable power of attorney otherwise provides or is in
conflict with another agreement or instrument, an agent is entitled
to reimbursement of reasonable expenses incurred on the principal's
behalf and to compensation that is reasonable under the
circumstances.
SECTION 1.04. The heading to Subchapter B, Chapter 751,
Estates Code, is amended to read as follows:
SUBCHAPTER B. EFFECT OF CERTAIN ACTS ON EXERCISE OF DURABLE POWER
OF ATTORNEY; DURATION; ACCEPTANCE AND RELIANCE
SECTION 1.05. Section 751.051, Estates Code, is amended to
read as follows:
Sec. 751.051. EFFECT OF ACTS PERFORMED BY [ATTORNEY IN FACT
OR] AGENT [DURING PRINCIPAL'S DISABILITY OR INCAPACITY]. An [Each]
act performed by an [attorney in fact or] agent under a durable
power of attorney [during a period of the principal's disability or
incapacity] has the same effect[,] and inures to the benefit of and
binds the principal and the principal's successors in interest[,]
as if the principal had performed the act [were not disabled or
incapacitated].
SECTION 1.06. Section 751.052, Estates Code, is amended to
read as follows:
Sec. 751.052. RELATION OF [ATTORNEY IN FACT OR] AGENT TO
COURT-APPOINTED GUARDIAN OF ESTATE. (a) If, after execution of a
durable power of attorney, a court of the principal's domicile
appoints a permanent guardian of the estate of the principal, the
powers of the [attorney in fact or] agent terminate on the
qualification of the guardian of the estate. The [attorney in fact
or] agent shall:
(1) deliver to the guardian of the estate all assets of
the ward's estate that are in the possession of the [attorney in
fact or] agent; and
(2) account to the guardian of the estate as the
[attorney in fact or] agent would account to the principal if the
principal had terminated the powers of the [attorney in fact or]
agent.
(b) If, after execution of a durable power of attorney, a
court of the principal's domicile appoints a temporary guardian of
the estate of the principal, the court may suspend the powers of the
[attorney in fact or] agent on the qualification of the temporary
guardian of the estate until the date the term of the temporary
guardian expires. This subsection may not be construed to prohibit
the application for or issuance of a temporary restraining order
under applicable law.
SECTION 1.07. Section 751.057, Estates Code, is amended to
read as follows:
Sec. 751.057. EFFECT OF BANKRUPTCY PROCEEDING. (a) The
filing of a voluntary or involuntary petition in bankruptcy in
connection with the debts of a principal who has executed a durable
power of attorney does not revoke or terminate the agency as to the
principal's [attorney in fact or] agent.
(b) Any act the [attorney in fact or] agent may undertake
with respect to the principal's property is subject to the
limitations and requirements of the United States Bankruptcy Code
(11 U.S.C. Section 101 et seq.) until a final determination is made
in the bankruptcy proceeding.
SECTION 1.08. Chapter 751, Estates Code, is amended by
adding Subchapter B-1 to read as follows:
SUBCHAPTER B-1. DURATION OF DURABLE POWER OF ATTORNEY; ACCEPTANCE
OF AND RELIANCE ON DURABLE POWER OF ATTORNEY
Sec. 751.061. TERMINATION OF DURABLE POWER OF ATTORNEY. A
durable power of attorney terminates when:
(1) the principal dies;
(2) the principal revokes the durable power of
attorney;
(3) the durable power of attorney provides that it
terminates;
(4) the purpose of the durable power of attorney is
accomplished;
(5) the principal revokes the agent's authority or the
agent dies, becomes incapacitated, or resigns, and the durable
power of attorney does not provide for another agent to act under
the durable power of attorney;
(6) a permanent guardian of the estate of the
principal has qualified to serve in that capacity as provided by
Section 751.052; or
(7) the agent's authority is otherwise terminated
under Section 751.062 and the durable power of attorney does not
provide for another agent to act under the durable power of
attorney.
Sec. 751.062. TERMINATION OF AGENT'S AUTHORITY. (a) An
agent's authority under a durable power of attorney terminates
when:
(1) the principal revokes the authority;
(2) the agent dies, becomes incapacitated, or resigns;
(3) the agent's marriage to the principal is dissolved
by court decree of divorce or annulment or is declared void by a
court, unless the durable power of attorney otherwise provides; or
(4) the durable power of attorney terminates.
(b) Unless the durable power of attorney otherwise
provides, an agent's authority may be exercised until the agency's
authority terminates under Subsection (a), notwithstanding a lapse
of time since the execution of the durable power of attorney.
Sec. 751.063. EFFECT OF TERMINATION OF DURABLE POWER OF
ATTORNEY OR AGENT'S AUTHORITY ON CERTAIN PERSONS. Termination of an
agent's authority or of a durable power of attorney is not effective
as to the agent or another person who, without actual knowledge of
the termination, acts in good faith under or in reliance on the
durable power of attorney. An act performed as described by this
section, unless otherwise invalid or unenforceable, binds the
principal and the principal's successors in interest.
Sec. 751.064. EFFECT ON PREVIOUS DURABLE POWER OF ATTORNEY.
The execution of a durable power of attorney does not revoke a
durable power of attorney previously executed by the principal
unless the subsequent durable power of attorney provides that the
previous durable power of attorney is revoked or that all other
durable powers of attorney are revoked.
Sec. 751.065. ACCEPTANCE OF AND RELIANCE ON POWER OF
ATTORNEY. (a) A person who accepts a durable power of attorney
without actual knowledge that the signature of the principal is not
genuine may rely on the presumption under Section 751.007 that the
signature is genuine and that the durable power of attorney was
properly executed.
(b) A person who accepts a durable power of attorney without
actual knowledge that the durable power of attorney is void,
invalid, or terminated, that the purported agent's authority is
void, invalid, or terminated, or that the agent is exceeding or
improperly exercising the agent's authority may rely on the power
of attorney as if:
(1) the power of attorney were genuine, valid, and
still in effect;
(2) the agent's authority were genuine, valid, and
still in effect; and
(3) the agent had not exceeded and had properly
exercised the authority.
(c) A person who is requested to accept a durable power of
attorney may request, and rely on, without further investigation:
(1) an agent's certification under penalty of perjury
of any factual matter concerning the principal, agent, or power of
attorney, which is conclusive proof of the matter;
(2) an English translation of the power of attorney if
the power of attorney contains, wholly or partly, language other
than English; and
(3) an opinion of counsel containing no material
qualifications as to any matter of law concerning the power of
attorney if the person making the request provides in a writing or
other record the reason for the request.
(d) An English translation or an opinion of counsel
requested under this section must be provided by the agent at the
agent's own expense unless the request is made not earlier than the
10th business day after the date the power of attorney is presented
for acceptance.
(e) For purposes of this section, a person who conducts
activities through employees is without actual knowledge of a fact
relating to a durable power of attorney, a principal, or an agent if
the employee conducting the transaction involving the power of
attorney is without actual knowledge of the fact.
(f) A certification described by Subsection (c) may be in
the following form:
CERTIFICATION OF POWER OF ATTORNEY BY AGENT
I, ___________ (agent), certify under penalty of perjury
that:
1. I am the agent named in the power of attorney validly
executed by ___________ (principal) ("principal") on ____________
(date), and the power of attorney is now in full force and effect.
2. The principal is not deceased and is presently domiciled
in ___________ (city and state/territory or foreign country).
3. To the best of my knowledge after diligent search and
inquiry:
a. The power of attorney has not been revoked by the
principal or suspended or partially or completely terminated by the
occurrence of any event, whether or not referenced in the power of
attorney;
b. A permanent or temporary guardian of the estate of
the principal has not qualified to serve in that capacity;
c. If I am (or was) the principal's spouse, my marriage
to the principal has not been dissolved by court decree of divorce
or annulment or declared void by a court (or the power of attorney
provides specifically that my appointment as the agent for the
principal does not terminate if my marriage to the principal is
dissolved by court decree of divorce or annulment or is declared
void by a court);
d. No proceeding has been commenced for a temporary or
permanent guardianship of the person or estate, or both, of the
principal; and
e. The exercise of my authority is not prohibited by
another agreement or instrument.
4. If under its terms the power of attorney becomes
effective on the disability or incapacity of the principal or at a
future time or on the occurrence of a contingency, the principal is
now disabled or incapacitated or the specified future time or
contingency has occurred.
5. I am acting within the scope of my authority under the
power of attorney, and my authority has not been altered or
terminated.
6. If applicable, I am the successor to ___________
(predecessor agent), who has resigned, died, or become
incapacitated, is not or is no longer qualified to serve, has
declined to serve as agent, or is otherwise unable to act. There is
no prior agent remaining under the power of attorney that precludes
my acting as successor agent.
7. I agree not to exercise any powers granted by the power of
attorney if I attain knowledge that the power of attorney has been
revoked, suspended, or partially or completely terminated.
8. A true and correct copy of the power of attorney is
attached to this document.
9. If applicable, the power of attorney was executed in the
law office of ____________________.
Date: __________, 20__.
__________________________________ (signature of agent)
SECTION 1.09. Sections 751.101, 751.102, 751.103, 751.104,
751.105, and 751.106, Estates Code, are amended to read as follows:
Sec. 751.101. FIDUCIARY DUTIES. An [attorney in fact or]
agent who accepts appointment as an agent under a durable power of
attorney as provided by Section 751.011 is a fiduciary and has a
duty to inform and to account for actions taken under the power of
attorney.
Sec. 751.102. DUTY TO TIMELY INFORM PRINCIPAL. (a) The
[attorney in fact or] agent shall timely inform the principal of
each action taken under the power of attorney.
(b) Failure of an [attorney in fact or] agent to timely
inform, as to third parties, does not invalidate any action of the
[attorney in fact or] agent.
Sec. 751.103. MAINTENANCE OF RECORDS. (a) The [attorney
in fact or] agent shall maintain records of each action taken or
decision made by the [attorney in fact or] agent.
(b) The [attorney in fact or] agent shall maintain all
records until delivered to the principal, released by the
principal, or discharged by a court.
Sec. 751.104. ACCOUNTING. (a) The principal may demand an
accounting by the [attorney in fact or] agent.
(b) Unless otherwise directed by the principal, an
accounting under Subsection (a) must include:
(1) the property belonging to the principal that has
come to the [attorney in fact's or] agent's knowledge or into the
[attorney in fact's or] agent's possession;
(2) each action taken or decision made by the
[attorney in fact or] agent;
(3) a complete account of receipts, disbursements, and
other actions of the [attorney in fact or] agent that includes
the source and nature of each receipt, disbursement, or action,
with receipts of principal and income shown separately;
(4) a listing of all property over which the [attorney
in fact or] agent has exercised control that includes:
(A) an adequate description of each asset; and
(B) the asset's current value, if the value is
known to the [attorney in fact or] agent;
(5) the cash balance on hand and the name and location
of the depository at which the cash balance is kept;
(6) each known liability; and
(7) any other information and facts known to the
[attorney in fact or] agent as necessary for a full and definite
understanding of the exact condition of the property belonging to
the principal.
(c) Unless directed otherwise by the principal, the
[attorney in fact or] agent shall also provide to the principal all
documentation regarding the principal's property.
Sec. 751.105. EFFECT OF FAILURE TO COMPLY; SUIT. If the
[attorney in fact or] agent fails or refuses to inform the
principal, provide documentation, or deliver an accounting under
Section 751.104 within 60 days of a demand under that section, or a
longer or shorter period as demanded by the principal or ordered by
a court, the principal may file suit to:
(1) compel the [attorney in fact or] agent to deliver
the accounting or the assets; or
(2) terminate the power of attorney.
Sec. 751.106. EFFECT OF SUBCHAPTER ON PRINCIPAL'S
RIGHTS. This subchapter does not limit the right of the principal
to terminate the power of attorney or to make additional
requirements of, [or to] give additional instructions to, or
expressly modify the duties or obligations of the [attorney in fact
or] agent.
SECTION 1.10. Section 751.151, Estates Code, is amended to
read as follows:
Sec. 751.151. RECORDING FOR REAL PROPERTY TRANSACTIONS
REQUIRING EXECUTION AND DELIVERY OF INSTRUMENTS. A durable power
of attorney for a real property transaction requiring the execution
and delivery of an instrument that is to be recorded, including a
release, assignment, satisfaction, mortgage, security agreement,
home equity lien, reverse mortgage, deed of trust, encumbrance,
deed of conveyance, oil, gas, or other mineral lease, memorandum of
a lease, lien, or other claim or right to real property, must be
recorded in the office of the county clerk of the county in which
the property is located.
SECTION 1.11. Chapter 751, Estates Code, is amended by
adding Subchapter E to read as follows:
SUBCHAPTER E. AUTHORITY OF AGENT UNDER POWER OF ATTORNEY
Sec. 751.201. GRANT OF GENERAL AUTHORITY; AUTHORITY
REQUIRING SPECIFIC GRANT. (a) Only if the power of attorney
expressly grants the agent the authority and the exercise of the
authority is not otherwise prohibited by another agreement or
instrument to which the authority or property is subject, an agent
under a durable power of attorney, on behalf of the principal or
with respect to the principal's property, may:
(1) create, amend, revoke, or terminate an inter vivos
trust;
(2) make a gift;
(3) create or change rights of survivorship;
(4) create or change a beneficiary designation; or
(5) delegate authority granted under the power of
attorney.
(b) Notwithstanding a grant of authority to perform an act
described by Subsection (a), unless the durable power of attorney
otherwise provides, an agent who is not an ancestor, spouse, or
descendant of the principal may not exercise authority under the
power of attorney to create in the agent, or in an individual to
whom the agent owes a legal obligation of support, an interest in
the principal's property, whether by gift, right of survivorship,
beneficiary designation, disclaimer, or otherwise.
(c) Subject to Subsections (a), (b), (d), and (e), if a
durable power of attorney grants to an agent the authority to
perform all acts that a principal could perform, the agent has the
general authority conferred by Subchapter C, Chapter 752.
(d) Unless the durable power of attorney otherwise
provides, a grant of authority to make a gift is subject to Section
751.202.
(e) Subject to Subsections (a), (b), and (d), if the
subjects over which authority is granted in a durable power of
attorney are similar or overlap, the broadest authority controls.
(f) Authority granted in a durable power of attorney is
exercisable with respect to property that the principal has when
the power of attorney is executed or acquires later, regardless of
whether:
(1) the property is located in this state; and
(2) the authority is exercised in this state or the
power of attorney is executed in this state.
(g) An agent who is expressly granted any of the authority
under Subsection (a) shall attempt to preserve the principal's
estate plan, to the extent actually known by the agent, if
preserving the plan is consistent with the principal's best
interest based on all relevant factors, including:
(1) the value and nature of the principal's property;
(2) the principal's foreseeable obligations and need
for maintenance;
(3) minimization of taxes, including income, estate,
inheritance, generation-skipping transfer, and gift taxes; and
(4) eligibility for a benefit, a program, or
assistance under a statute or regulation.
Sec. 751.202. GIFTS. (a) In this section, a gift for the
benefit of a person includes:
(1) a gift to a trust;
(2) an account under the Texas Uniform Transfers to
Minors Act or a similar law of any other state; and
(3) a tuition savings account or prepaid tuition plan
as described by Section 529, Internal Revenue Code of 1986.
(b) Unless the durable power of attorney otherwise
provides, language in a power of attorney granting general
authority with respect to gifts authorizes the agent to only:
(1) make outright to, or for the benefit of, a person a
gift of any of the principal's property, including by the exercise
of a presently exercisable general power of appointment held by the
principal, in an amount per donee not to exceed:
(A) the annual dollar limits of the federal gift
tax exclusion under Section 2503(b), Internal Revenue Code of 1986,
without regard to whether the federal gift tax exclusion applies to
the gift; or
(B) if the principal's spouse agrees to consent
to a split gift as provided by Section 2513, Internal Revenue Code
of 1986, twice the annual federal gift tax exclusion limit; and
(2) consent, as provided by Section 2513, Internal
Revenue Code of 1986, to the splitting of a gift made by the
principal's spouse in an amount per donee not to exceed the
aggregate annual federal gift tax exclusions for both spouses.
(c) An agent may make a gift of the principal's property
only as the agent determines is consistent with the principal's
objectives if actually known by the agent and, if unknown, as the
agent determines is consistent with the principal's best interest
based on all relevant factors, including:
(1) the value and nature of the principal's property;
(2) the principal's foreseeable obligations and need
for maintenance;
(3) minimization of taxes, including income, estate,
inheritance, generation-skipping transfer, and gift taxes;
(4) eligibility for a benefit, a program, or
assistance under a statute or regulation; and
(5) the principal's personal history of making or
joining in making gifts.
Sec. 751.203. BENEFICIARY DESIGNATIONS. (a) Unless the
durable power of attorney otherwise provides, and except as
provided by Section 751.201(b), authority granted to an agent under
Section 751.201(a)(4) includes the power to:
(1) create or change a beneficiary designation under
an account, a contract, or another arrangement that authorizes the
principal to designate a beneficiary, including insurance and
annuity contracts, qualified and nonqualified retirement plans,
including those retirement plans defined by Section 752.113,
employment agreements, including deferred compensation agreements,
and residency agreements;
(2) enter into or change a P.O.D. account or trust
account under Chapter 113; or
(3) create or change a nontestamentary payment or
transfer under Chapter 111.
(b) If an agent is granted authority under Section
751.201(a)(4) and if the durable power of attorney grants the
authority to the agent in Section 752.108 or 752.113, then, unless
the durable power of attorney otherwise provides, the authority of
the agent to designate the agent as a beneficiary is not subject to
the limitations prescribed by Sections 752.108(b) and 752.113(c).
(c) If an agent is not granted authority under Section
751.201(a)(4) and if the durable power of attorney grants the
authority to the agent in Section 752.108 or 752.113, then, unless
the durable power of attorney otherwise provides and
notwithstanding Section 751.201, the agent's authority to
designate the agent as a beneficiary is subject to the limitations
prescribed by Sections 752.108(b) and 752.113(c).
Sec. 751.204. INCORPORATION OF AUTHORITY. (a) An agent has
authority described in this chapter if the durable power of
attorney refers to general authority with respect to the
descriptive term for the subjects stated in Chapter 752 or cites the
section in which the authority is described.
(b) A reference in a durable power of attorney to general
authority with respect to the descriptive term for a subject in
Chapter 752 or a citation to one of those sections incorporates the
entire section as if the section were set out in its entirety in the
durable power of attorney.
(c) A principal may modify authority incorporated by
reference.
SECTION 1.12. Section 752.051, Estates Code, 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.
(YOU MAY APPOINT CO-AGENTS. UNLESS YOU PROVIDE OTHERWISE,
CO-AGENTS MUST ACT JOINTLY.)
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.
____ (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).
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 BELOW [ABOVE], THIS POWER OF
ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT
TERMINATES [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. Termination [Revocation] of this [the]
durable power of attorney is not effective as to a third party until
the third party receives actual notice of the termination
[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, or if my marriage to an agent named by me
is dissolved by court decree of divorce or annulment or is declared
void by a court (unless I provided in this document that the
dissolution or declaration does not terminate the agent's authority
to act under this power of attorney), 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 or declaration that your marriage is void, unless
otherwise provided in this power of attorney;
(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 1.13. Subchapter B, Chapter 752, Estates Code, is
amended by adding Section 752.052 to read as follows:
Sec. 752.052. MODIFYING STATUTORY FORM TO GRANT SPECIFIC
AUTHORITY. The statutory durable power of attorney may be modified
to allow the principal to grant the agent the specific authority
described by Section 751.201 by including the following language:
"GRANT OF SPECIFIC AUTHORITY (OPTIONAL)
My agent MAY NOT do any of the following specific acts for me
UNLESS I have INITIALED the specific authority listed below:
(CAUTION: Granting any of the following will give your agent the
authority to take actions that could significantly reduce your
property or change how your property is distributed at your death.
INITIAL ONLY the specific authority you WANT to give your agent. If
you DO NOT want to grant your agent one or more of the following
powers, you may also CROSS OUT such power.)
( ) Create, amend, revoke, or terminate an inter vivos
trust
( ) Make a gift, subject to the limitations of Section
751.202, the Durable Power of Attorney Act, and any special
instructions in this power of attorney
( ) Create or change rights of survivorship
( ) Create or change a beneficiary designation
( ) Authorize another person to exercise the authority
granted under this power of attorney".
SECTION 1.14. Section 752.102, Estates Code, is amended to
read as follows:
Sec. 752.102. REAL PROPERTY TRANSACTIONS. (a) The language
conferring authority with respect to real property transactions in
a statutory durable power of attorney empowers the attorney in fact
or agent, without further reference to a specific description of
the real property, to:
(1) accept as a gift or as security for a loan or
reject, demand, buy, lease, receive, or otherwise acquire an
interest in real property or a right incident to real property;
(2) sell, exchange, convey with or without covenants,
quitclaim, release, surrender, mortgage, encumber, partition or
consent to partitioning, subdivide, apply for zoning, rezoning, or
other governmental permits, plat or consent to platting, develop,
grant options concerning, lease or sublet, or otherwise dispose of
an estate or interest in real property or a right incident to real
property;
(3) release, assign, satisfy, and enforce by
litigation, action, or otherwise a mortgage, deed of trust,
encumbrance, lien, or other claim to real property that exists or is
claimed to exist;
(4) perform any act of management or of conservation
with respect to an interest in real property, or a right incident to
real property, owned or claimed to be owned by the principal,
including the authority to:
(A) insure against a casualty, liability, or
loss;
(B) obtain or regain possession or protect the
interest or right by litigation, action, or otherwise;
(C) pay, compromise, or contest taxes or
assessments or apply for and receive refunds in connection with the
taxes or assessments;
(D) purchase supplies, hire assistance or labor,
or make repairs or alterations to the real property; and
(E) manage and supervise an interest in real
property, including the mineral estate[, by, for example:
[(i) entering into a lease for oil, gas, and
mineral purposes;
[(ii) making contracts for development of
the mineral estate; or
[(iii) making pooling and unitization
agreements];
(5) use, develop, alter, replace, remove, erect, or
install structures or other improvements on real property in which
the principal has or claims to have an estate, interest, or right;
(6) participate in a reorganization with respect to
real property or a legal entity that owns an interest in or right
incident to real property, receive and hold shares of stock or
obligations received in a plan or reorganization, and act with
respect to the shares or obligations, including:
(A) selling or otherwise disposing of the shares
or obligations;
(B) exercising or selling an option, conversion,
or similar right with respect to the shares or obligations; and
(C) voting the shares or obligations in person or
by proxy;
(7) change the form of title of an interest in or right
incident to real property; [and]
(8) dedicate easements or other real property in which
the principal has or claims to have an interest to public use, with
or without consideration;
(9) enter into mineral transactions, including:
(A) negotiating and making oil, gas, and other
mineral leases covering any land, mineral, or royalty interest in
which the principal has or claims to have an interest;
(B) pooling and unitizing all or part of the
principal's land, mineral leasehold, mineral, royalty, or other
interest with land, mineral leasehold, mineral, royalty, or other
interest of one or more persons for the purpose of developing and
producing oil, gas, or other minerals, and making leases or
assignments granting the right to pool and unitize;
(C) entering into contracts and agreements
concerning the installation and operation of plants or other
facilities for the cycling, repressuring, processing, or other
treating or handling of oil, gas, or other minerals;
(D) conducting or contracting for the conducting
of seismic evaluation operations;
(E) drilling or contracting for the drilling of
wells for oil, gas, or other minerals;
(F) contracting for and making "dry hole" and
"bottom hole" contributions of cash, leasehold interests, or other
interests toward the drilling of wells;
(G) using or contracting for the use of any
method of secondary or tertiary recovery of any mineral, including
the injection of water, gas, air, or other substances;
(H) purchasing oil, gas, or other mineral leases,
leasehold interests, or other interests for any type of
consideration, including farmout agreements requiring the drilling
or reworking of wells or participation therein;
(I) entering into farmout agreements committing
the principal to assign oil, gas, or other mineral leases or
interests in consideration for the drilling of wells or other oil,
gas, or mineral operations;
(J) negotiating the transfer of and transferring
oil, gas, or other mineral leases or interests for any
consideration, such as retained overriding royalty interests of any
nature, drilling or reworking commitments, or production
interests; and
(K) executing and entering into contracts,
conveyances, and other agreements or transfers considered
necessary or desirable to carry out the powers granted in this
section, regardless of whether the action is now or subsequently
recognized or considered as a common or proper practice by those
engaged in the business of prospecting for, developing, producing,
processing, transporting, or marketing minerals, including
entering into and executing division orders, oil, gas, or other
mineral sales contracts, exploration agreements, processing
agreements, and other contracts relating to the processing,
handling, treating, transporting, and marketing of oil, gas, or
other mineral production from or accruing to the principal and
receiving and receipting for the proceeds thereof on behalf of the
principal; and
(10) designate the property that constitutes the
principal's homestead.
(b) The power to mortgage and encumber real property
provided by this section includes the power to execute documents
necessary to create a lien against the principal's homestead as
provided by Section 50, Article XVI, Texas Constitution, and to
consent to the creation of a lien against property owned by the
principal's spouse in which the principal has a homestead interest.
SECTION 1.15. Section 752.108(b), Estates Code, is amended
to read as follows:
(b) Unless the principal has expressly granted the
authority to create or change a beneficiary designation under
Section 751.201(a)(4), an [An] attorney in fact or agent may be
named a beneficiary of an insurance contract or an extension,
renewal, or substitute for the contract only to the extent the
attorney in fact or agent was named as a beneficiary under a
contract procured by the principal before executing the power of
attorney.
SECTION 1.16. Sections 752.109 and 752.111, Estates Code,
are amended to read as follows:
Sec. 752.109. ESTATE, TRUST, AND OTHER BENEFICIARY
TRANSACTIONS. The language conferring authority with respect to
estate, trust, and other beneficiary transactions in a statutory
durable power of attorney empowers the attorney in fact or agent to
act for the principal in all matters that affect a trust, probate
estate, guardianship, conservatorship, life estate, escrow,
custodianship, or other fund from which the principal is, may
become, or claims to be entitled, as a beneficiary, to a share or
payment, including to:
(1) accept, reject, disclaim, receive, receipt for,
sell, assign, release, pledge, exchange, or consent to a reduction
in or modification of a share in or payment from the fund;
(2) demand or obtain by litigation, action, or
otherwise money or any other thing of value to which the principal
is, may become, or claims to be entitled because of the fund;
(3) initiate, participate in, or oppose a legal or
judicial proceeding to:
(A) ascertain the meaning, validity, or effect of
a deed, will, declaration of trust, or other instrument or
transaction affecting the interest of the principal; or
(B) remove, substitute, or surcharge a
fiduciary;
(4) conserve, invest, disburse, or use anything
received for an authorized purpose; and
(5) transfer all or part of the principal's interest in
real property, stocks, bonds, accounts with financial
institutions, insurance, and other property to the trustee of a
revocable trust created by the principal as settlor.
Sec. 752.111. PERSONAL AND FAMILY MAINTENANCE. The
language conferring authority with respect to personal and family
maintenance in a statutory durable power of attorney empowers the
attorney in fact or agent to:
(1) perform the acts necessary to maintain the
customary standard of living of the principal, the principal's
spouse and children, and other individuals customarily or legally
entitled to be supported by the principal, including:
(A) providing living quarters by purchase,
lease, or other contract; or
(B) paying the operating costs, including
interest, amortization payments, repairs, and taxes on premises
owned by the principal and occupied by those individuals;
(2) provide for the individuals described by
Subdivision (1):
(A) normal domestic help;
(B) usual vacations and travel expenses; and
(C) money for shelter, clothing, food,
appropriate education, and other living costs;
(3) pay necessary medical, dental, and surgical care,
hospitalization, and custodial care for the individuals described
by Subdivision (1);
(4) continue any provision made by the principal for
the individuals described by Subdivision (1) for automobiles or
other means of transportation, including registering, licensing,
insuring, and replacing the automobiles or other means of
transportation;
(5) maintain or open charge accounts for the
convenience of the individuals described by Subdivision (1) and
open new accounts the attorney in fact or agent considers desirable
to accomplish a lawful purpose; [and]
(6) continue:
(A) payments incidental to the membership or
affiliation of the principal in a church, club, society, order, or
other organization; or
(B) contributions to those organizations; and
(7) subject to the needs of the individuals described
by Subdivision (1), provide for the reasonable care of the
principal's pets.
SECTION 1.17. Sections 752.113(b) and (c), Estates Code,
are amended to read as follows:
(b) The language conferring authority with respect to
retirement plan transactions in a statutory durable power of
attorney empowers the attorney in fact or agent to perform any
lawful act the principal may perform with respect to a transaction
relating to a retirement plan, including to:
(1) apply for service or disability retirement
benefits;
(2) select payment options under any retirement plan
in which the principal participates, including plans for
self-employed individuals;
(3) designate or change the designation of a
beneficiary or benefits payable by a retirement plan, except as
provided by Subsection (c);
(4) make voluntary contributions to retirement plans
if authorized by the plan;
(5) exercise the investment powers available under any
self-directed retirement plan;
(6) make rollovers of plan benefits into other
retirement plans;
(7) borrow from, sell assets to, and purchase assets
from retirement plans if authorized by the plan;
(8) waive the principal's right to be a beneficiary of
a joint or survivor annuity if the principal is not the participant
in the retirement plan providing those payments [a spouse who is not
employed];
(9) receive, endorse, and cash payments from a
retirement plan;
(10) waive the principal's right to receive all or a
portion of benefits payable by a retirement plan; and
(11) request and receive information relating to the
principal from retirement plan records.
(c) Unless the principal has expressly granted the
authority to create or change a beneficiary designation under
Section 751.201(a)(4), an [An] attorney in fact or agent may be
named a beneficiary under a retirement plan only to the extent the
attorney in fact or agent was a named beneficiary under the
retirement plan, or in the case of a rollover or trustee-to-trustee
transfer, the predecessor retirement plan, before the durable power
of attorney was executed.
SECTION 1.18. The changes in law made by this Act to
Subchapters B, C, and D, Chapter 751, Estates Code, and by
Subchapters B-1 and E, Chapter 751, Estates Code, as added by this
Act, apply to a durable power of attorney, including a statutory
durable power of attorney, executed on or after the effective date
of this Act. A durable power of attorney, including 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 durable
power of attorney was executed, and the former law is continued in
effect for that purpose.
SECTION 1.19. (a) Except as otherwise provided by this Act,
this Act applies to:
(1) a durable power of attorney created before, on, or
after the effective date of this Act;
(2) a judicial proceeding concerning a durable power
of attorney commenced on or after the effective date of this Act;
and
(3) a judicial proceeding concerning a durable power
of attorney commenced before the effective date of this Act that is
pending.
(b) If the court finds that application of a provision of
this Act would substantially interfere with the effective conduct
of a judicial proceeding concerning a durable power of attorney
commenced before the effective date of this Act or would prejudice
the rights of a party to the proceeding, the provision of this Act
does not apply and the former law applies in those circumstances.
(c) An act performed before the effective date of this Act
is not affected by this Act.
(d) Section 751.012, Estates Code, as added by this Act,
applies to a durable power of attorney executed on or after the
effective date of this Act.
SECTION 1.20. The following sections of Title 2, Estates
Code, are repealed:
(1) Section 751.004;
(2) Section 751.053;
(3) Section 751.054;
(4) Section 751.055;
(5) Section 751.056; and
ARTICLE 2. ADVANCE DIRECTIVES
SECTION 2.01. Section 166.003, Health and Safety Code, is
amended to read as follows:
Sec. 166.003. WITNESSES. In any circumstance in which this
chapter requires the execution of an advance directive or the
issuance of a nonwritten advance directive to be witnessed:
(1) each witness must be a competent adult; and
(2) at least one of the witnesses must be a person who
is not:
(A) a person designated by the declarant to make
a treatment decision;
(B) a person related to the declarant by blood or
marriage;
(C) a person entitled to any part of the
declarant's estate after the declarant's death under a will or
codicil executed by the declarant or by operation of law;
(D) the attending physician;
(E) an employee of the attending physician;
(F) an owner, operator, or employee of a health
care facility in which the declarant is a patient [if the employee
is providing direct patient care to the declarant or is an officer,
director, partner, or business office employee of the health care
facility or of any parent organization of the health care
facility]; or
(G) a person who, at the time the written advance
directive is executed or, if the directive is a nonwritten
directive issued under this chapter, at the time the nonwritten
directive is issued, has a claim against any part of the declarant's
estate after the declarant's death.
SECTION 2.02. Section 166.033, Health and Safety Code, is
amended to read as follows:
Sec. 166.033. FORM OF WRITTEN DIRECTIVE. A written
directive may be in the following form:
DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES
Instructions for completing this document:
This is an important legal document known as an Advance
Directive. It is designed to help you communicate your wishes about
medical treatment at some time in the future when you are unable to
make your wishes known because of illness or injury. These wishes
are usually based on personal values. In particular, you may want
to consider what burdens or hardships of treatment you would be
willing to accept for a particular amount of benefit obtained if you
were seriously ill.
You are encouraged to discuss your values and wishes with
your family or chosen spokesperson, as well as your physician. Your
physician, other health care provider, or medical institution may
provide you with various resources to assist you in completing your
advance directive. Brief definitions are listed below and may aid
you in your discussions and advance planning. Initial the
treatment choices that best reflect your personal preferences.
Provide a copy of your directive to your physician, usual hospital,
and family or spokesperson. Consider a periodic review of this
document. By periodic review, you can best assure that the
directive reflects your preferences.
In addition to this advance directive, Texas law provides for
two other types of directives that can be important during a serious
illness. These are the Medical Power of Attorney and the
Out-of-Hospital Do-Not-Resuscitate Order. You may wish to discuss
these with your physician, family, hospital representative, or
other advisers. You may also wish to complete a directive related
to the donation of organs and tissues.
DIRECTIVE
I, __________, recognize that the best health care is based
upon a partnership of trust and communication with my physician. My
physician and I will make health care decisions together as long as
I am of sound mind and able to make my wishes known. If there comes
a time that I am unable to make medical decisions about myself
because of illness or injury, I direct that the following treatment
preferences be honored:
If, in the judgment of my physician, I am suffering with a
terminal condition from which I am expected to die within six
months, even with available life-sustaining treatment provided in
accordance with prevailing standards of medical care:
__________ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR __________ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR
__________ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR
__________ I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.) __________ I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
__________ I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
If, in the judgment of my physician, I am suffering with an
irreversible condition so that I cannot care for myself or make
decisions for myself and am expected to die without life-sustaining
treatment provided in accordance with prevailing standards of care:
__________ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR __________ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR
__________ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR
__________ I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.) __________ I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
__________ I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
Additional requests: (After discussion with your physician,
you may wish to consider listing particular treatments in this
space that you do or do not want in specific circumstances, such as
artificial nutrition and fluids, intravenous antibiotics, etc. Be
sure to state whether you do or do not want the particular
treatment.)
________________________________________________________________ ________________________________________________________________
________________________________________________________________
________________________________________________________________ ________________________________________________________________
________________________________________________________________
________________________________________________________________ ________________________________________________________________
________________________________________________________________
After signing this directive, if my representative or I elect
hospice care, I understand and agree that only those treatments
needed to keep me comfortable would be provided and I would not be
given available life-sustaining treatments.
If I do not have a Medical Power of Attorney, and I am unable
to make my wishes known, I designate the following person(s) to make
treatment decisions with my physician compatible with my personal
values:
1. __________ 1. __________
1. __________
2. __________ 2. __________
2. __________
(If a Medical Power of Attorney has been executed, then an
agent already has been named and you should not list additional
names in this document.)
If the above persons are not available, or if I have not
designated a spokesperson, I understand that a spokesperson will be
chosen for me following standards specified in the laws of Texas.
If, in the judgment of my physician, my death is imminent within
minutes to hours, even with the use of all available medical
treatment provided within the prevailing standard of care, I
acknowledge that all treatments may be withheld or removed except
those needed to maintain my comfort. I understand that under Texas
law this directive has no effect if I have been diagnosed as
pregnant. This directive will remain in effect until I revoke it.
No other person may do so.
Signed__________ Date__________ City, County, State of
Residence __________
Either a notary public or two [Two] competent adult witnesses
must sign below, acknowledging the signature of the declarant. If
this instrument is acknowledged before two witnesses, the [The]
witness designated as Witness 1 may not be a person designated to
make a treatment decision for the patient and may not be related to
the patient by blood or marriage. This witness may not be entitled
to any part of the estate and may not have a claim against the estate
of the patient. This witness may not be the attending physician or
an employee of the attending physician. [If this witness is an
employee of a health care facility in which the patient is being
cared for, this witness may not be involved in providing direct
patient care to the patient.] This witness may not be an owner,
operator, [officer, director, partner,] or [business office]
employee of a health care facility in which you as the declarant are
a [the] patient [is being cared for or of any parent organization of
the health care facility].
SIGNATURE ACKNOWLEDGED BEFORE NOTARY
State of Texas
County of__________________
This instrument was acknowledged before me on _________________
(date) by _____________________ (name of person acknowledging).
____________________
NOTARY PUBLIC, State of
Texas
Notary's printed name:
____________________
My commission expires:
____________________
OR
SIGNATURE IN PRESENCE OF TWO COMPETENT ADULT WITNESSES
Witness 1 __________ Witness 2 __________
Definitions:
"Artificial nutrition and hydration" means the provision of
nutrients or fluids by a tube inserted in a vein, under the skin in
the subcutaneous tissues, or in the stomach (gastrointestinal
tract).
"Irreversible condition" means a condition, injury, or
illness:
(1) that may be treated, but is never cured or
eliminated;
(2) that leaves a person unable to care for or make
decisions for the person's own self; and
(3) that, without life-sustaining treatment provided
in accordance with the prevailing standard of medical care, is
fatal.
Explanation: Many serious illnesses such as cancer, failure
of major organs (kidney, heart, liver, or lung), and serious brain
disease such as Alzheimer's dementia may be considered irreversible
early on. There is no cure, but the patient may be kept alive for
prolonged periods of time if the patient receives life-sustaining
treatments. Late in the course of the same illness, the disease may
be considered terminal when, even with treatment, the patient is
expected to die. You may wish to consider which burdens of
treatment you would be willing to accept in an effort to achieve a
particular outcome. This is a very personal decision that you may
wish to discuss with your physician, family, or other important
persons in your life.
"Life-sustaining treatment" means treatment that, based on
reasonable medical judgment, sustains the life of a patient and
without which the patient will die. The term includes both
life-sustaining medications and artificial life support such as
mechanical breathing machines, kidney dialysis treatment, and
artificial hydration and nutrition. The term does not include the
administration of pain management medication, the performance of a
medical procedure necessary to provide comfort care, or any other
medical care provided to alleviate a patient's pain.
"Terminal condition" means an incurable condition caused by
injury, disease, or illness that according to reasonable medical
judgment will produce death within six months, even with available
life-sustaining treatment provided in accordance with the
prevailing standard of medical care.
Explanation: Many serious illnesses may be considered
irreversible early in the course of the illness, but they may not be
considered terminal until the disease is fairly advanced. In
thinking about terminal illness and its treatment, you again may
wish to consider the relative benefits and burdens of treatment and
discuss your wishes with your physician, family, or other important
persons in your life.
SECTION 2.03. Sections 166.152(b) and (g), Health and
Safety Code, are amended to read as follows:
(b) An agent may exercise authority only when, in the
opinion of the principal's attending physician, the principal is
incompetent or unable to make and communicate a choice about a
specific health care decision [if the principal's attending
physician certifies in writing and files the certification in the
principal's medical record that, based on the attending physician's
reasonable medical judgment, the principal is incompetent].
(g) The power of attorney is effective indefinitely on
execution as provided by this subchapter and delivery of the
document to the agent, unless it is revoked as provided by this
subchapter [or the principal becomes competent]. If the medical
power of attorney includes an expiration date and on that date the
principal is incompetent or unable to make and communicate a health
care decision, the power of attorney continues to be effective
until the principal becomes competent and capable of making and
communicating a health care decision, unless it is revoked as
provided by this subchapter.
SECTION 2.04. Section 166.155, Health and Safety Code, is
amended to read as follows:
Sec. 166.155. REVOCATION; EFFECT OF TERMINATION OF
MARRIAGE. (a) A medical power of attorney is revoked by:
(1) oral or written notification at any time by the
principal to the agent or a licensed or certified health or
residential care provider or by any other act evidencing a specific
intent to revoke the power, without regard to whether the principal
is competent or the principal's mental state; or
(2) execution by the principal of a subsequent medical
power of attorney. [; or]
(b) An agent's authority under a medical power of attorney
terminates if the agent's marriage to [(3) the divorce of] the
principal is dissolved, annulled, or declared void [and spouse, if
the spouse is the principal's agent,] unless the medical power of
attorney specifically provides otherwise. The authority of other
agents under the medical power of attorney is not terminated.
(c) [(b)] A principal's licensed or certified health or
residential care provider who is informed of or provided with a
revocation of a medical power of attorney or is informed of the
termination of an agent's authority under Subsection (b) shall
immediately record the revocation or termination in the principal's
medical record and give notice of the revocation or termination to
the agent and any known health and residential care providers
currently responsible for the principal's care.
SECTION 2.05. Subchapter D, Chapter 166, Health and Safety
Code, is amended by adding Section 166.1625 to read as follows:
Sec. 166.1625. PERMISSIBLE FORMS OF MEDICAL POWER OF
ATTORNEY. (a) A medical power of attorney may be in the form
described by Section 166.164 or may be in another form that meets
the requirements of this subchapter or that is authorized under
Section 166.005. An example alternative form is the health care
power of attorney form produced by the Commission on Law and Aging,
American Bar Association, which may be accessible on the American
Bar Association's Internet website.
(b) A durable power of attorney or similar document executed
by a veteran of the United States armed forces that is in compliance
with the advance directive requirements of the United States
Department of Veterans Affairs is valid and enforceable in this
state. This subsection does not authorize the administration,
withholding, or withdrawal of health care otherwise prohibited by
the laws of this state.
SECTION 2.06. Section 166.164, Health and Safety Code, is
amended to read as follows:
Sec. 166.164. FORM OF MEDICAL POWER OF ATTORNEY. The
medical power of attorney may [must] be in [substantially] the
following form:
MEDICAL POWER OF ATTORNEY DESIGNATION OF HEALTH CARE AGENT.
I, __________ (insert your name) appoint:
Name:___________________________________________________________
Address:________________________________________________________
Phone___________________________________________________________
as my agent to make any and all health care decisions for me,
except to the extent I state otherwise in this document. This
medical power of attorney is effective only when, in the opinion of
my attending physician, I am incompetent or I am unable to make and
communicate a choice about a particular health care decision [takes
effect if I become unable to make my own health care decisions and
this fact is certified in writing by my physician].
LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE
AS FOLLOWS:_____________________________________________________
________________________________________________________________
DESIGNATION OF ALTERNATE AGENT.
(You are not required to designate an alternate agent but you
may do so. An alternate agent may make the same health care
decisions as the designated agent if the designated agent is unable
or unwilling to act as your agent. If the agent designated is your
spouse, the designation of that spouse is automatically terminated
[revoked] by law if your marriage is dissolved, annulled, or
declared void unless this document provides otherwise, but the
remainder of this document is valid and the authority of other
agents under the document is not terminated.)
If the person designated as my agent is unable or unwilling to
make health care decisions for me, I designate the following
persons to serve as my agent to make health care decisions for me as
authorized by this document, who serve in the following order:
A. First Alternate Agent
Name:________________________________________________
Address:_____________________________________________
Phone __________________________________________
B. Second Alternate Agent
Name:________________________________________________
Address:_____________________________________________
Phone __________________________________________
I intend to keep the [The] original of this document [is
kept] at:
_____________________________________________________
_____________________________________________________
_____________________________________________________
I intend for the [The] following individuals or
institutions to have signed copies:
Name:________________________________________________
Address:_____________________________________________
_____________________________________________________
Name:________________________________________________
Address:_____________________________________________
_____________________________________________________
DURATION.
I understand that this power of attorney exists indefinitely
from the date I execute this document unless I establish a shorter
time or revoke the power of attorney.
(IF A SPECIFIC TERMINATION DATE IS SELECTED) This power of
attorney ends on the following date: _________.
If I am incompetent or unable to make and communicate health
care decisions for myself when this power of attorney expires, the
authority I have granted my agent continues to exist until the time
I become able to make and communicate health care decisions for
myself.
[(IF APPLICABLE) This power of attorney ends on the
following date: __________]
PRIOR DESIGNATIONS REVOKED.
I revoke any prior medical power of attorney.
INFORMATION CONCERNING THE MEDICAL POWER OF ATTORNEY
The medical power of attorney is an important legal document.
Before signing this document, you should know these important
facts:
Except to the extent you state otherwise or as provided by
Texas law, this document gives the person you name as your agent the
authority to make any and all health care decisions for you in
accordance with your wishes, including your religious and moral
beliefs, when you are no longer capable of making them yourself.
Because "health care" means any treatment, service, or
procedure to maintain, diagnose, or treat your physical or mental
condition, your agent has the power to make a broad range of health
care decisions for you. Your agent may consent, refuse to consent,
or withdraw consent to medical treatment and may make decisions
about withdrawing or withholding life-sustaining treatment. Your
agent may not consent to voluntary inpatient mental health
services, convulsive treatment, psychosurgery, or abortion.
A physician must comply with your agent's instructions or
allow you to be transferred to another physician.
Your agent's authority is effective when, in your doctor's
opinion, you are incompetent or you are unable to make and
communicate a choice about a particular health care decision.
Your agent is obligated to follow your instructions when
making decisions on your behalf. Unless you state otherwise, your
agent, when making decisions about your health care, has the same
authority to make those decisions as you would have if you were
competent or able to communicate.
It is important that you discuss your medical power of
attorney with your physician or other health care provider. Before
you sign any medical power of attorney, make sure that you
understand the nature and range of decisions that may be made on
your behalf. If you do not have a physician, you should talk with
someone else who is knowledgeable about these issues and can answer
your questions. You do not need a lawyer's assistance to complete
this document, but if there is anything in this document that you do
not understand, you should ask a lawyer to explain it to you.
The person you appoint as agent should be someone you know and
trust. The person must be 18 years of age or older or a person under
18 years of age who has had the disabilities of minority removed.
If you appoint your health or residential care provider (e.g., your
physician or an employee of a home health agency, hospital, nursing
home, or residential care home, other than a relative), that person
has to choose between acting as your agent or as your health or
residential care provider; the law does not permit a person to do
both at the same time.
You should inform the person you appoint that you want the
person to be your health care agent. You should discuss your
medical power of attorney with your agent and your physician and
give each a signed copy. You may indicate on the document itself
the people and institutions that you intend to have signed copies.
Your agent is not liable for health care decisions made in good
faith on your behalf.
After you have signed your medical power of attorney, you
retain the right to make health care decisions for yourself as long
as you are competent and can communicate your health care
decisions, and treatment cannot be given to you or stopped over your
objection. You have the right to revoke the authority granted to
your agent by informing your agent or your health or residential
care provider orally or in writing or by your execution of a
subsequent medical power of attorney. Unless you state otherwise
in the document, your appointment of a spouse terminates on
divorce.
A signed medical power of attorney may not be changed or
modified. If you want to make changes in a medical power of
attorney, you must execute a new medical power of attorney.
You may wish to designate an alternate agent in the event that
your agent is unwilling, unable, or ineligible to act as your agent.
Any alternate agent you designate has the same authority as the
agent to make health care decisions for you.
THE FOLLOWING PERSONS MAY NOT ACT AS ONE OF THE WITNESSES:
(1) the person you have designated as your agent;
(2) a person related to you by blood or marriage;
(3) a person entitled to any part of your estate after
your death under a will or codicil executed by you or by operation
of law;
(4) your attending physician;
(5) an employee of your attending physician;
(6) an owner, operator, or employee of a health care
facility in which you are a patient; or
(7) a person who, at the time this medical power of
attorney is executed, has a claim against any part of your estate
after your death.
[ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.
[I have been provided with a disclosure statement explaining
the effect of this document. I have read and understand that
information contained in the disclosure statement.]
(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY. YOU MAY SIGN
IT AND HAVE YOUR SIGNATURE ACKNOWLEDGED BEFORE A NOTARY PUBLIC OR
YOU MAY SIGN IT IN THE PRESENCE OF TWO COMPETENT ADULT WITNESSES.)
SIGNATURE ACKNOWLEDGED BEFORE NOTARY
I sign my name to this medical power of attorney on __________
day of __________ (month, year) at
_____________________________________________
(City and State)
_____________________________________________
(Signature)
_____________________________________________
(Print Name)
State of Texas
County of ________
This instrument was acknowledged before me on __________ (date) by
________________ (name of person acknowledging).
_____________________________
NOTARY PUBLIC, State of Texas
Notary's printed name:
_____________________________
My commission expires:
_____________________________
OR
SIGNATURE IN PRESENCE OF TWO COMPETENT ADULT WITNESSES
I sign my name to this medical power of attorney on __________
day of __________ (month, year) at
_____________________________________________
(City and State)
_____________________________________________
(Signature)
_____________________________________________
(Print Name)
STATEMENT OF FIRST WITNESS.
I am not the person appointed as agent by this document. I am
not related to the principal by blood or marriage. I would not be
entitled to any portion of the principal's estate on the principal's
death. I am not the attending physician of the principal or an
employee of the attending physician. I have no claim against any
portion of the principal's estate on the principal's
death. [Furthermore, if] I am not an owner, operator, or employee
of a health care facility in which the principal is a patient[, I am
not involved in providing direct patient care to the principal and
am not an officer, director, partner, or business office employee
of the health care facility or of any parent organization of the
health care facility].
Signature:________________________________________________
Print Name:___________________________________ Date:______
Address:__________________________________________________
SIGNATURE OF SECOND WITNESS.
Signature:________________________________________________
Print Name:___________________________________ Date:______
Address:__________________________________________________
SECTION 2.07. Sections 166.162 and 166.163, Health and
Safety Code, are repealed.
SECTION 2.08. The changes in law made by this article apply
only to the validity of a document executed on or after the
effective date of this Act. The validity of a document executed
before the effective date of this Act is governed by the law in
effect on the date the document was executed, and that law continues
in effect for that purpose.
SECTION 2.09. (a) Except as otherwise provided in this
section, the changes in law made by this article to the Health and
Safety Code apply to:
(1) a medical power of attorney created before, on, or
after the effective date of this Act; and
(2) a judicial proceeding concerning a medical power
of attorney that:
(A) commences on or after the effective date of
this Act; or
(B) is pending on the effective date of this Act.
(b) If the court finds that application of a provision of
this article would substantially interfere with the effective
conduct of a judicial proceeding concerning a medical power of
attorney that is pending on the effective date of this Act or
prejudice the rights of a party to the proceeding, the provision of
this article does not apply, and the law in effect immediately
before the effective date of this Act applies in those
circumstances.
ARTICLE 3. EFFECTIVE DATE
SECTION 3.01. This Act takes effect September 1, 2015.
__________ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR
__________ I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
__________ I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR
__________ I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)
________________________________________________________________
________________________________________________________________
________________________________________________________________
1. __________
2. __________