By: Wray (Senate Sponsor - RodrÃguez) H.B. No. 1974
(In the Senate - Received from the House May 12, 2017;
May 12, 2017, read first time and referred to Committee on State
Affairs; May 19, 2017, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
May 19, 2017, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 1974 By: Zaffirini
A BILL TO BE ENTITLED
AN ACT
relating to durable powers of attorney.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 751, Estates Code, is
amended by adding Section 751.0015 to read as follows:
Sec. 751.0015. APPLICABILITY OF SUBTITLE. 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 the power, including a power of
attorney given to or for the benefit of a creditor in connection
with a credit transaction;
(2) a medical power of attorney, as defined by Section
166.002, Health and Safety Code;
(3) a proxy or other delegation to exercise voting
rights or management rights with respect to an entity; or
(4) a power of attorney created on a form prescribed by
a government or governmental subdivision, agency, or
instrumentality for a governmental purpose.
SECTION 2. Subchapter A, Chapter 751, Estates Code, is
amended by amending Sections 751.002, 751.003, and 751.006 and
adding Sections 751.00201, 751.0021, 751.0022, 751.0023, 751.0024,
and 751.007 to read as follows:
Sec. 751.002. DEFINITIONS [DEFINITION OF DURABLE POWER OF
ATTORNEY]. In this subtitle:
(1) "Actual knowledge" means the knowledge of a person
without that person making any due inquiry, and without any imputed
knowledge, except as expressly set forth in Section 751.211(c).
(2) "Affiliate" means a business entity that directly
or indirectly controls, is controlled by, or is under common
control with another business entity.
(3) "Agent" includes:
(A) an attorney in fact; and
(B) a co-agent, successor agent, or successor
co-agent.
(4) "Durable power of attorney" means a writing or
other record that complies with the requirements of Section
751.0021(a) or is described by Section 751.0021(b).
(5) "Principal" means an adult person who signs or
directs the signing of the person's name on a power of attorney that
designates an agent to act on the person's behalf.
(6) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
Sec. 751.00201. MEANING OF DISABLED OR INCAPACITATED FOR
PURPOSES OF DURABLE POWER OF ATTORNEY. Unless otherwise defined by
a durable power of attorney, a person is considered disabled or
incapacitated for purposes of the durable power of attorney if a
physician certifies in writing at a date later than the date the
durable power of attorney is executed that, based on the
physician's medical examination of the person, the person is
determined to be mentally incapable of managing the person's
financial affairs.
Sec. 751.0021. REQUIREMENTS OF DURABLE POWER OF ATTORNEY.
(a) An instrument is a durable power of attorney for purposes of
this subtitle if the [A "durable power of attorney" means a written]
instrument [that]:
(1) is a writing or other record that designates
another person as [attorney in fact or] agent and grants authority
to that agent to act in the place of the principal, regardless of
whether the term "power of attorney" is used;
(2) is signed by an adult principal or in the adult
principal's conscious presence by another adult directed by the
principal to sign the principal's name on the instrument;
(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
clearly indicate [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 or another adult
directed by the principal as authorized by Subdivision (2) 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 a jurisdiction other than this state
determines the meaning and effect of a writing or other record that
grants authority to an agent to act in the place of the principal,
regardless of whether the term "power of attorney" is used, and that
law provides that the authority conferred on the agent is
exercisable notwithstanding the principal's subsequent disability
or incapacity, the writing or other record is considered a durable
power of attorney under this subtitle.
Sec. 751.0022. PRESUMPTION OF GENUINE SIGNATURE. A
signature on a durable power of attorney that purports to be the
signature of the principal or of another adult directed by the
principal as authorized by Section 751.0021(a)(2) is presumed to be
genuine, and the durable power of attorney is presumed to have been
executed under Section 751.0021(a) if the officer taking the
acknowledgment has complied with the requirements of Section
121.004(b), Civil Practice and Remedies Code.
Sec. 751.0023. 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 751.0021(a).
(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 751.0024; 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 or by the durable power of attorney, 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, without liability, by a person who is asked to accept the
durable power of attorney to the same extent as the original.
Sec. 751.0024. 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. 751.003. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
This subtitle shall be applied and construed to effect the general
purpose of this subtitle, which is to make uniform to the fullest
extent possible the law with respect to the subject of this subtitle
among states enacting these provisions.
Sec. 751.006. REMEDIES UNDER OTHER LAW [RIGHTS CUMULATIVE].
The remedies [rights set out] under this chapter [subtitle] are not
exclusive and do not abrogate any right or remedy under any law of
this state other than this chapter [cumulative of any other rights
or remedies the principal may have at common law or other applicable
statutes and are not in derogation of those rights].
Sec. 751.007. CONFLICT WITH OR EFFECT ON OTHER LAW. This
subtitle does not:
(1) supersede any other law applicable to financial
institutions or other entities, and to the extent of any conflict
between this subtitle and another law applicable to an entity, the
other law controls; or
(2) have the effect of validating a conveyance of an
interest in real property executed by an agent under a durable power
of attorney if the conveyance is determined under a statute or
common law to be void but not voidable.
SECTION 3. Chapter 751, Estates Code, is amended by adding
Subchapters A-1 and A-2 to read as follows:
SUBCHAPTER A-1. APPOINTMENT OF AGENTS
Sec. 751.021. CO-AGENTS. A principal may designate in a
durable power of attorney two or more persons to act as co-agents.
Unless the durable power of attorney otherwise provides, each
co-agent may exercise authority independently of the other
co-agent.
Sec. 751.022. 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. 751.023. SUCCESSOR AGENTS. (a) A principal may
designate in a durable power of attorney one or more successor
agents to act if an agent resigns, dies, or becomes incapacitated,
is not qualified to serve, or declines to serve.
(b) A principal may grant authority to designate one or more
successor agents to an agent or other person designated by name,
office, or function.
(c) 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, including co-agents, to
the successor agent have resigned, died, or become incapacitated,
are not qualified to serve, or have declined to serve.
Sec. 751.024. REIMBURSEMENT AND COMPENSATION OF AGENT.
Unless the durable power of attorney otherwise provides, an agent
is entitled to:
(1) reimbursement of reasonable expenses incurred on
the principal's behalf; and
(2) compensation that is reasonable under the
circumstances.
SUBCHAPTER A-2. AUTHORITY OF AGENT UNDER DURABLE POWER OF ATTORNEY
Sec. 751.031. GRANTS OF AUTHORITY IN GENERAL AND CERTAIN
LIMITATIONS. (a) Subject to Subsections (b), (c), and (d) and
Section 751.032, if a durable power of attorney grants to an agent
the authority to perform all acts that the principal could perform,
the agent has the general authority conferred by Subchapter C,
Chapter 752.
(b) An agent may take the following actions on the
principal's behalf or with respect to the principal's property only
if the durable power of attorney designating the agent 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:
(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.
(c) Notwithstanding a grant of authority to perform an act
described by Subsection (b), 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.
(d) Subject to Subsections (b) and (c) and Section 751.032,
if the subjects over which authority is granted in a durable power
of attorney are similar or overlap, the broadest authority
controls.
(e) 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.
Sec. 751.032. GIFT AUTHORITY. (a) In this section, a gift
for the benefit of a person includes a gift to:
(1) a trust;
(2) an account under the Texas Uniform Transfers to
Minors Act (Chapter 141, Property Code) or a similar law of another
state; and
(3) a qualified tuition program of any state that
meets the requirements of Section 529, Internal Revenue Code of
1986.
(b) Unless the durable power of attorney otherwise
provides, a grant of authority to make a gift is subject to the
limitations prescribed by this section.
(c) Language in a durable 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,
regardless of 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.
(d) An agent may make a gift of the principal's property
only as the agent determines is consistent with the principal's
objectives if the agent actually knows those objectives. If the
agent does not know the principal's objectives, the agent may make a
gift of the principal's property only as the agent determines is
consistent with the principal's best interest based on all relevant
factors, including the factors listed in Section 751.122 and the
principal's personal history of making or joining in making gifts.
Sec. 751.033. AUTHORITY TO CREATE OR CHANGE CERTAIN
BENEFICIARY DESIGNATIONS. (a) Unless the durable power of
attorney otherwise provides, and except as provided by Section
751.031(c), authority granted to an agent under Section
751.031(b)(4) empowers the agent to:
(1) create or change a beneficiary designation under
an account, contract, or another arrangement that authorizes the
principal to designate a beneficiary, including an insurance or
annuity contract, a qualified or nonqualified retirement plan,
including a retirement plan as defined by Section 752.113, an
employment agreement, including a deferred compensation agreement,
and a residency agreement;
(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
751.031(b)(4) and the durable power of attorney grants the
authority to the agent described in Section 752.108 or 752.113,
then, unless the 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
751.031(b)(4) but the durable power of attorney grants the
authority to the agent described in Section 752.108 or 752.113,
then, unless the power of attorney otherwise provides and
notwithstanding Section 751.031, 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. 751.034. 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
power of attorney.
(c) A principal may modify authority incorporated by
reference.
SECTION 4. Sections 751.051, 751.057, 751.101, 751.102,
751.103, 751.104, 751.105, and 751.106, Estates Code, are 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].
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.
Sec. 751.101. FIDUCIARY DUTIES. A person who accepts
appointment as an agent under a durable power of attorney as
provided by Section 751.022 [An attorney in fact or agent] is a
fiduciary as to the principal only when acting as an agent under the
power of attorney 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 a durable [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 durable 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 durable power of attorney or to make additional
requirements of or to give additional instructions to the [attorney
in fact or] agent.
SECTION 5. Chapter 751, Estates Code, is amended by adding
Subchapters C-1 and C-2 to read as follows:
SUBCHAPTER C-1. OTHER DUTIES OF AGENT
Sec. 751.121. DUTY TO NOTIFY OF BREACH OF FIDUCIARY DUTY BY
OTHER AGENT. (a) 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, 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.
(b) Except as otherwise provided by Subsection (a) 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.
Sec. 751.122. DUTY TO PRESERVE PRINCIPAL'S ESTATE PLAN. An
agent shall preserve to the extent reasonably possible the
principal's estate plan to the extent the agent has actual
knowledge of the plan 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.
SUBCHAPTER C-2. DURATION OF DURABLE POWER OF ATTORNEY AND AGENT'S
AUTHORITY
Sec. 751.131. TERMINATION OF DURABLE POWER OF ATTORNEY. A
durable power of attorney terminates when:
(1) the principal dies;
(2) the principal revokes the power of attorney;
(3) the power of attorney provides that it terminates;
(4) the purpose of the power of attorney is
accomplished;
(5) one of the circumstances with respect to an agent
described by Section 751.132(a)(1), (2), or (3) arises and the
power of attorney does not provide for another agent to act under
the power of attorney; or
(6) a permanent guardian of the estate of the
principal has qualified to serve in that capacity as provided by
Section 751.133.
Sec. 751.132. 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, is no
longer qualified, 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 power of attorney otherwise provides; or
(4) the power of attorney terminates.
(b) Unless the durable power of attorney otherwise
provides, an agent's authority may be exercised until the agent's
authority terminates under Subsection (a), notwithstanding a lapse
of time since the execution of the power of attorney.
Sec. 751.134. EFFECT ON CERTAIN PERSONS OF TERMINATION OF
DURABLE POWER OF ATTORNEY OR AGENT'S AUTHORITY. 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
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. 751.135. PREVIOUS DURABLE POWER OF ATTORNEY CONTINUES
IN EFFECT UNTIL REVOKED. The execution of a durable power of
attorney does not revoke a durable power of attorney previously
executed by the principal unless the subsequent power of attorney
provides that the previous power of attorney is revoked or that all
other durable powers of attorney are revoked.
SECTION 6. Section 751.052, Estates Code, is transferred to
Subchapter C-2, Chapter 751, Estates Code, as added by this Act,
redesignated as Section 751.133, Estates Code, and amended to read
as follows:
Sec. 751.133 [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 incapacitated person's [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 7. 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, including a reverse
mortgage, security agreement, deed of trust, encumbrance, deed of
conveyance, oil, gas, or other mineral lease, memorandum of a
lease, lien, including a home equity 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 not later than the
30th day after the date the instrument is filed for recording.
SECTION 8. Chapter 751, Estates Code, is amended by adding
Subchapters E and F to read as follows:
SUBCHAPTER E. ACCEPTANCE OF AND RELIANCE ON DURABLE POWER OF
ATTORNEY
Sec. 751.201. ACCEPTANCE OF DURABLE POWER OF ATTORNEY
REQUIRED; EXCEPTIONS. (a) Unless one or more grounds for refusal
under Section 751.206 exist, a person who is presented with and
asked to accept a durable power of attorney by an agent with
authority to act under the power of attorney shall:
(1) accept the power of attorney; or
(2) before accepting the power of attorney:
(A) request an agent's certification under
Section 751.203 or an opinion of counsel under Section 751.204 not
later than the 10th business day after the date the power of
attorney is presented, except as provided by Subsection (c); or
(B) if applicable, request an English
translation under Section 751.205 not later than the fifth business
day after the date the power of attorney is presented, except as
provided by Subsection (c).
(b) Unless one or more grounds for refusal under Section
751.206 exist and except as provided by Subsection (c), a person who
requests:
(1) an agent's certification must accept the durable
power of attorney not later than the seventh business day after the
date the person receives the requested certification; and
(2) an opinion of counsel must accept the durable
power of attorney not later than the seventh business day after the
date the person receives the requested opinion.
(c) An agent presenting a durable power of attorney for
acceptance and the person to whom the power of attorney is presented
may agree to extend a period prescribed by Subsection (a) or (b).
(d) If an English translation of a durable power of attorney
is requested as authorized by Subsection (a)(2)(B), the power of
attorney is not considered presented for acceptance under
Subsection (a) until the date the requestor receives the
translation. On and after that date, the power of attorney shall be
treated as a power of attorney originally prepared in English for
all the purposes of this subchapter.
(e) A person is not required to accept a durable power of
attorney under this section if the agent refuses to or does not
provide a requested certification, opinion of counsel, or English
translation under this subchapter.
Sec. 751.202. OTHER FORM OR RECORDING OF DURABLE POWER OF
ATTORNEY AS CONDITION OF ACCEPTANCE PROHIBITED. A person who is
asked to accept a durable power of attorney under Section 751.201
may not require that:
(1) an additional or different form of the power of
attorney be presented for authority that is granted in the power of
attorney presented to the person; or
(2) the power of attorney be recorded in the office of
a county clerk unless the recording of the instrument is required by
Section 751.151 or another law of this state.
Sec. 751.203. AGENT'S CERTIFICATION. (a) Before accepting
a durable power of attorney under Section 751.201, the person to
whom the power of attorney is presented may request that the agent
presenting the power of attorney provide to the person an agent's
certification, under penalty of perjury, of any factual matter
concerning the principal, agent, or power of attorney. If under its
terms the power of attorney becomes effective on the disability or
incapacity of the principal, the person to whom the power of
attorney is presented may request that the certification include a
written statement from a physician attending the principal that
states that the principal is presently disabled or incapacitated.
(b) A certification described by Subsection (a) may be in
the following form:
CERTIFICATION OF DURABLE 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 terminated by the occurrence of any
event, whether or not referenced in the power of attorney;
b. At the time the power of attorney was executed, the
principal was mentally competent to transact legal matters and was
not acting under the undue influence of any other person;
c. A permanent guardian of the estate of the principal
has not qualified to serve in that capacity;
d. My powers under the power of attorney have not been
suspended by a court in a temporary guardianship or other
proceeding;
e. 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 has
been dissolved by court decree of divorce or annulment or declared
void by a court;
f. No proceeding has been commenced for a temporary or
permanent guardianship of the person or estate, or both, of the
principal; and
g. 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 now
has a disability or is 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 qualified to serve or has declined to serve as
agent, or is otherwise unable to act. There are no unsatisfied
conditions remaining under the power of attorney that preclude my
acting as successor agent.
7. I agree not to:
a. Exercise any powers granted by the power of
attorney if I attain knowledge that the power of attorney has been
revoked, suspended, or terminated; or
b. Exercise any specific powers that have been
revoked, suspended, or terminated.
8. A true and correct copy of the power of attorney is
attached to this document.
9. If used in connection with an extension of credit under
Section 50(a)(6), Article XVI, Texas Constitution, the power of
attorney was executed in the office of the lender, the office of a
title company, or the law office of ____________________.
Date: __________, 20__.
__________________________________ (signature of agent)
(c) A certification made in compliance with this section is
conclusive proof of the factual matter that is the subject of the
certification.
Sec. 751.204. OPINION OF COUNSEL. (a) Before accepting a
durable power of attorney under Section 751.201, the person to whom
the power of attorney is presented may request from the agent
presenting the power of attorney an opinion of counsel regarding
any matter of law concerning the power of attorney so long as the
person provides to the agent the reason for the request in a writing
or other record.
(b) Except as otherwise provided in an agreement to extend
the request period under Section 751.201(c), an opinion of counsel
requested under this section must be provided by the principal or
agent, at the principal's expense. If, without an extension, the
requestor requests the opinion later than the 10th business day
after the date the durable power of attorney is presented to the
requestor, the principal or agent may, but is not required to,
provide the opinion, at the requestor's expense.
Sec. 751.205. ENGLISH TRANSLATION. (a) Before accepting a
durable power of attorney under Section 751.201 that contains,
wholly or partly, language other than English, the person to whom
the power of attorney is presented may request from the agent
presenting the power of attorney an English translation of the
power of attorney.
(b) Except as otherwise provided in an agreement to extend
the request period under Section 751.201(c), an English translation
requested under this section must be provided by the principal or
agent, at the principal's expense. If, without an extension, the
requestor requests the translation later than the fifth business
day after the date the durable power of attorney is presented to the
requestor, the principal or agent may, but is not required to,
provide the translation, at the requestor's expense.
Sec. 751.206. GROUNDS FOR REFUSING ACCEPTANCE. A person is
not required to accept a durable power of attorney under this
subchapter if:
(1) the person would not otherwise be required to
engage in a transaction with the principal under the same
circumstances, including a circumstance in which the agent seeks
to:
(A) establish a customer relationship with the
person under the power of attorney when the principal is not already
a customer of the person or expand an existing customer
relationship with the person under the power of attorney; or
(B) acquire a product or service under the power
of attorney that the person does not offer;
(2) the person's engaging in the transaction with the
agent or with the principal under the same circumstances would be
inconsistent with:
(A) another law of this state or a federal
statute, rule, or regulation;
(B) a request from a law enforcement agency; or
(C) a policy adopted by the person in good faith
that is necessary to comply with another law of this state or a
federal statute, rule, regulation, regulatory directive, guidance,
or executive order applicable to the person;
(3) the person would not engage in a similar
transaction with the agent because the person or an affiliate of the
person:
(A) has filed a suspicious activity report as
described by 31 U.S.C. Section 5318(g) with respect to the
principal or agent;
(B) believes in good faith that the principal or
agent has a prior criminal history involving financial crimes; or
(C) has had a previous, unsatisfactory business
relationship with the agent due to or resulting in:
(i) material loss to the person;
(ii) financial mismanagement by the agent;
(iii) litigation between the person and the
agent alleging substantial damages; or
(iv) multiple nuisance lawsuits filed by
the agent;
(4) the person has actual knowledge of the termination
of the agent's authority or of the power of attorney before an
agent's exercise of authority under the power of attorney;
(5) the agent refuses to comply with a request for a
certification, opinion of counsel, or translation under Section
751.201 or, if the agent complies with one or more of those
requests, the requestor in good faith is unable to determine the
validity of the power of attorney or the agent's authority to act
under the power of attorney because the certification, opinion, or
translation is incorrect, incomplete, unclear, limited, qualified,
or otherwise deficient in a manner that makes the certification,
opinion, or translation ineffective for its intended purpose, as
determined in good faith by the requestor;
(6) regardless of whether an agent's certification,
opinion of counsel, or translation has been requested or received
by the person under this subchapter, the person believes in good
faith that:
(A) the power of attorney is not valid;
(B) the agent does not have the authority to act
as attempted; or
(C) the performance of the requested act would
violate the terms of:
(i) a business entity's governing
documents; or
(ii) an agreement affecting a business
entity, including how the entity's business is conducted;
(7) the person commenced, or has actual knowledge that
another person commenced, a judicial proceeding to construe the
power of attorney or review the agent's conduct and that proceeding
is pending;
(8) the person commenced, or has actual knowledge that
another person commenced, a judicial proceeding for which a final
determination was made that found:
(A) the power of attorney invalid with respect to
a purpose for which the power of attorney is being presented for
acceptance; or
(B) the agent lacked the authority to act in the
same manner in which the agent is attempting to act under the power
of attorney;
(9) the person makes, has made, or has actual
knowledge that another person has made a report to a law enforcement
agency or other federal or state agency, including the Department
of Family and Protective Services, stating a good faith belief that
the principal may be subject to physical or financial abuse,
neglect, exploitation, or abandonment by the agent or a person
acting with or on behalf of the agent;
(10) the person receives conflicting instructions or
communications with regard to a matter from co-agents acting under
the same power of attorney or from agents acting under different
powers of attorney signed by the same principal or another adult
acting for the principal as authorized by Section 751.0021,
provided that the person may refuse to accept the power of attorney
only with respect to that matter; or
(11) the person is not required to accept the durable
power of attorney by the law of the jurisdiction that applies in
determining the power of attorney's meaning and effect, or the
powers conferred under the durable power of attorney that the agent
is attempting to exercise are not included within the scope of
activities to which the law of that jurisdiction applies.
Sec. 751.207. WRITTEN STATEMENT OF REFUSAL OF ACCEPTANCE
REQUIRED. (a) Except as provided by Subsection (b), a person who
refuses to accept a durable power of attorney under this subchapter
shall provide to the agent presenting the power of attorney for
acceptance a written statement advising the agent of the reason or
reasons the person is refusing to accept the power of attorney.
(b) If the reason a person is refusing to accept a durable
power of attorney is a reason described by Section 751.206(2) or
(3):
(1) the person shall provide to the agent presenting
the power of attorney for acceptance a written statement signed by
the person under penalty of perjury stating that the reason for the
refusal is a reason described by Section 751.206(2) or (3); and
(2) the person refusing to accept the power of
attorney is not required to provide any additional explanation for
refusing to accept the power of attorney.
(c) The person must provide to the agent the written
statement required under Subsection (a) or (b) on or before the date
the person would otherwise be required to accept the durable power
of attorney under Section 751.201.
Sec. 751.208. DATE OF ACCEPTANCE. A durable power of
attorney is considered accepted by a person under Section 751.201
on the first day the person agrees to act at the agent's direction
under the power of attorney.
Sec. 751.209. GOOD FAITH RELIANCE ON DURABLE POWER OF
ATTORNEY. (a) A person who in good faith accepts a durable power of
attorney without actual knowledge that the signature of the
principal or of another adult directed by the principal to sign the
principal's name as authorized by Section 751.0021 is not genuine
may rely on the presumption under Section 751.0022 that the
signature is genuine and that the power of attorney was properly
executed.
(b) A person who in good faith accepts a durable power of
attorney without actual knowledge that the 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.
Sec. 751.210. RELIANCE ON CERTAIN REQUESTED INFORMATION. A
person may rely on, without further investigation or liability to
another person, an agent's certification, opinion of counsel, or
English translation that is provided to the person under this
subchapter.
Sec. 751.211. ACTUAL KNOWLEDGE OF PERSON WHEN TRANSACTIONS
CONDUCTED THROUGH EMPLOYEES. (a) This section applies to a person
who conducts a transaction or activity through an employee of the
person.
(b) For purposes of this chapter, a person is not considered
to have actual knowledge of a fact relating to a durable power of
attorney, principal, or agent if the employee conducting the
transaction or activity involving the power of attorney does not
have actual knowledge of the fact.
(c) For purposes of this chapter, a person is considered to
have actual knowledge of a fact relating to a durable power of
attorney, principal, or agent if the employee conducting the
transaction or activity involving the power of attorney has actual
knowledge of the fact.
Sec. 751.212. CAUSE OF ACTION FOR REFUSAL TO ACCEPT DURABLE
POWER OF ATTORNEY. (a) The principal or an agent acting on the
principal's behalf may bring an action against a person who refuses
to accept a durable power of attorney in violation of this
subchapter.
(b) An action under Subsection (a) may not be commenced
against a person until after the date the person is required to
accept the durable power of attorney under Section 751.201.
(c) If the court finds that the person refused to accept the
durable power of attorney in violation of this subchapter, the
court, as the exclusive remedy under this chapter:
(1) shall order the person to accept the power of
attorney; and
(2) may award the plaintiff court costs and reasonable
and necessary attorney's fees.
(d) The court shall dismiss an action under this section
that was commenced after the date a written statement described by
Section 751.207(b) was provided to the agent.
(e) Notwithstanding Subsection (c), if the agent receives a
written statement described by Section 751.207(b) after the date a
timely action is commenced under this section, the court may not
order the person to accept the durable power of attorney, but
instead may award the plaintiff court costs and reasonable and
necessary attorney's fees as the exclusive remedy under this
chapter.
Sec. 751.213. LIABILITY OF PRINCIPAL. (a) Subsection (b)
applies to an action brought under Section 751.212 if:
(1) the court finds that the action was commenced
after the date the written statement described by Section
751.207(b) was timely provided to the agent;
(2) the court expressly finds that the refusal of the
person against whom the action was brought to accept the durable
power of attorney was permitted under this chapter; or
(3) Section 751.212(e) does not apply and the court
does not issue an order ordering the person to accept the power of
attorney.
(b) Under any of the circumstances described by Subsection
(a), the principal may be liable to the person who refused to accept
the durable power of attorney for court costs and reasonable and
necessary attorney's fees incurred in defending the action as the
exclusive remedy under this chapter.
SUBCHAPTER F. CIVIL REMEDIES
Sec. 751.251. JUDICIAL RELIEF. (a) The following may bring
an action requesting a court to construe, or determine the validity
or enforceability of, a durable power of attorney, or to review an
agent's conduct under a durable power of attorney 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
property, a benefit, or a contractual right on the principal's
death;
(4) a governmental agency with regulatory authority to
protect the principal's welfare; and
(5) a person who demonstrates to the court sufficient
interest in the principal's welfare or estate.
(b) A person who is asked to accept a durable power of
attorney may bring an action requesting a court to construe, or
determine the validity or enforceability of, the power of attorney.
(c) On the principal's motion, the court shall dismiss an
action under Subsection (a) unless the court finds that the
principal lacks capacity to revoke the agent's authority or the
durable power of attorney.
SECTION 9. 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. IF YOU WANT YOUR AGENT TO HAVE THE AUTHORITY TO SIGN HOME
EQUITY LOAN DOCUMENTS ON YOUR BEHALF, THIS POWER OF ATTORNEY MUST BE
SIGNED BY YOU AT THE OFFICE OF THE LENDER, AN ATTORNEY AT LAW, OR A
TITLE COMPANY.
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 MAY ACT INDEPENDENTLY.)
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 agent compensation
(initial in front of one of the following sentences to have it
apply; if no selection is made, each agent will be entitled to
compensation that is reasonable under the circumstances):
____ My agent is entitled to reimbursement of reasonable
expenses incurred on my behalf and to compensation that is
reasonable under the circumstances.
____ My agent is entitled to reimbursement of reasonable
expenses incurred on my behalf but shall receive no compensation
for serving as my agent.
Special instructions applicable to co-agents (if you have
appointed co-agents to act, initial in front of one of the following
sentences to have it apply; if no selection is made, each agent will
be entitled to act independently):
____ Each of my co-agents may act independently for me.
____ My co-agents may act for me only if the co-agents act
jointly.
____ My co-agents may act for me only if a majority of the
co-agents act jointly.
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 has actual knowledge [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. The meaning and effect of this
durable power of attorney is determined by Texas law.
If any agent named by me dies, becomes incapacitated [legally
disabled], resigns, or refuses to act, or if my marriage to an agent
named by me is dissolved by a 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 a 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 10. 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 751.031(b) 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 a power you DO NOT want to grant.)
____ Create, amend, revoke, or terminate an inter vivos
trust
____ Make a gift, subject to the limitations of Section
751.032 of the Durable Power of Attorney Act (Section 751.032,
Estates Code) 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 11. 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 in the drilling or reworking
of wells;
(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;
(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, 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 of those
contracts, conveyances, and other agreements and transfers on
behalf of the principal; and
(L) taking an action described by Paragraph (K)
regardless of whether the action is, at the time the action is taken
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; 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 12. Section 752.108(b), Estates Code, is amended to
read as follows:
(b) Unless the principal has granted the authority to create
or change a beneficiary designation expressly as required by
Section 751.031(b)(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 13. 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;
(7) perform all acts necessary in relation to the
principal's mail, including:
(A) receiving, signing for, opening, reading,
and responding to any mail addressed to the principal, whether
through the United States Postal Service or a private mail service;
(B) forwarding the principal's mail to any
address; and
(C) representing the principal before the United
States Postal Service in all matters relating to mail service; and
(8) subject to the needs of the individuals described
by Subdivision (1), provide for the reasonable care of the
principal's pets.
SECTION 14. 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 [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 granted the authority to create
or change a beneficiary designation expressly as required by
Section 751.031(b)(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 a beneficiary by the
principal 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 15. The following sections of the 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
(6) Section 751.058.
SECTION 16. (a) Except as otherwise provided by this Act,
this Act applies to:
(1) a durable power of attorney, including a statutory
durable power of attorney, created before, on, or after the
effective date of this Act; and
(2) a judicial proceeding concerning a durable power
of attorney pending on, or commenced on or after, the effective date
of this Act.
(b) The following provisions apply only to a durable power
of attorney, including a statutory durable power of attorney,
executed on or after the effective date of this Act:
(1) Section 751.024, Estates Code, as added by this
Act;
(2) Subchapter A-2, Chapter 751, Estates Code, as
added by this Act;
(3) Subchapters B, C, and D, Chapter 751, Estates
Code, as amended by this Act; and
(4) Chapter 752, Estates Code, as amended by this Act.
(c) A durable power of attorney, including a statutory
durable power of attorney, executed before the effective date of
this Act is governed by the provisions specified in Subsections
(b)(3) and (4) of this section as those provisions existed on the
date the durable power of attorney was executed, and the former law
is continued in effect for that purpose.
(d) 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 continues in effect for that
purpose and applies in those circumstances.
(e) An act performed by a principal or agent with respect to
a durable power of attorney before the effective date of this Act is
not affected by this Act.
SECTION 17. This Act takes effect September 1, 2017.
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