Texas 2017 - 85th Regular

Texas House Bill HB2158 Compare Versions

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1	1	85R9410 MTB-F
2	2	By: Parker H.B. No. 2158
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the adoption of the Texas Revised Uniform Fiduciary
8	8	Access to Digital Assets Act.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. The Estates Code is amended by adding Title 4 to
11	11	read as follows:
12	12	TITLE 4. DIGITAL ASSETS
13	13	CHAPTER 2001. TEXAS REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL
14	14	ASSETS ACT
15	15	SUBCHAPTER A. GENERAL PROVISIONS
16	16	Sec. 2001.001. SHORT TITLE. This chapter may be cited as
17	17	the Texas Revised Uniform Fiduciary Access to Digital Assets Act.
18	18	Sec. 2001.002. DEFINITIONS. In this chapter:
19	19	(1) "Account" means an arrangement under a
20	20	terms-of-service agreement in which a custodian carries,
21	21	maintains, processes, receives, or stores a digital asset of the
22	22	user or provides goods or services to the user.
23	23	(2) "Agent" means an attorney in fact granted
24	24	authority to act for a principal under a durable or other power of
25	25	attorney. The term does not include an agent under a medical power
26	26	of attorney.
27	27	(3) "Carries" means to engage in the transmission of
28	28	an electronic communication.
29	29	(4) "Catalog of electronic communications" means
30	30	information that identifies each person with whom a user has had an
31	31	electronic communication, the time and date of the communication,
32	32	and the electronic address of the person.
33	33	(5) "Content of an electronic communication" means
34	34	information concerning the substance or meaning of an electronic
35	35	communication that:
36	36	(A) has been sent, uploaded, received, or
37	37	downloaded by a user;
38	38	(B) is in electronic storage by a custodian
39	39	providing an electronic communication service to the public or is
40	40	carried or maintained by a custodian providing a remote computing
41	41	service to the public; and
42	42	(C) is not readily accessible to the public.
43	43	(6) "Custodian" means a person that carries,
44	44	maintains, processes, receives, or stores a digital asset of a
45	45	user.
46	46	(7) "Designated recipient" means a person chosen by a
47	47	user using an online tool to administer digital assets of the user.
48	48	(8) "Digital asset" means an electronic record in
49	49	which an individual has a right or interest. The term does not
50	50	include an underlying asset or liability unless the asset or
51	51	liability is itself an electronic record.
52	52	(9) "Electronic" means relating to technology having
53	53	electrical, digital, magnetic, wireless, optical, electromagnetic,
54	54	or similar capabilities.
55	55	(10) "Electronic communication" has the meaning
56	56	assigned by 18 U.S.C. Section 2510(12), as it existed on January 1,
57	57	2017.
58	58	(11) "Electronic communication service" means a
59	59	custodian that provides to a user the ability to send or receive an
60	60	electronic communication.
61	61	(12) "Fiduciary" means an original, additional, or
62	62	successor personal representative, guardian, agent, or trustee.
63	63	(13) "Guardian" has the meaning assigned by Section
64	64	1002.012, except that the term does not include a guardian of the
65	65	person of a ward.
66	66	(14) "Information" means data, text, images, videos,
67	67	sounds, codes, computer programs, software, databases, or the like.
68	68	(15) "Online tool" means an electronic service
69	69	provided by a custodian that allows the user, in an agreement
70	70	distinct from the terms-of-service agreement between the custodian
71	71	and user, to provide directions for disclosure or nondisclosure of
72	72	digital assets to a third person.
73	73	(16) "Person" has the meaning assigned by Section
74	74	311.005, Government Code.
75	75	(17) "Personal representative," notwithstanding
76	76	Section 22.031, means:
77	77	(A) an executor or independent executor;
78	78	(B) an administrator, independent administrator,
79	79	or temporary administrator;
80	80	(C) a successor to an executor or administrator
81	81	listed in Paragraph (A) or (B); or
82	82	(D) a person who performs functions
83	83	substantially similar to those performed by the persons listed in
84	84	Paragraphs (A), (B), or (C) under the laws of this state, other than
85	85	this chapter.
86	86	(18) "Power of attorney" means a record that grants an
87	87	agent authority to act in the place of a principal with regard to
88	88	property matters, including a durable power of attorney as provided
89	89	by Subtitle P, Title 2. The term does not include a medical power of
90	90	attorney.
91	91	(19) "Principal" means an individual who grants
92	92	authority to an agent in a power of attorney.
93	93	(20) "Record" means information that is inscribed on a
94	94	tangible medium or that is stored in an electronic or other medium
95	95	and is retrievable in perceivable form.
96	96	(21) "Remote computing service" means a custodian that
97	97	provides to a user computer processing services or the storage of
98	98	digital assets by means of an electronic communications system, as
99	99	defined by 18 U.S.C. Section 2510(14), as it existed on January 1,
100	100	2017.
101	101	(22) "Terms-of-service agreement" means an agreement
102	102	that controls the relationship between a user and a custodian.
103	103	(23) "Trustee" has the meaning assigned by Section
104	104	111.004, Property Code.
105	105	(24) "User" means a person who has an account with a
106	106	custodian.
107	107	Sec. 2001.003. APPLICABILITY. (a) This chapter applies to
108	108	a custodian if the user resides in this state or resided in this
109	109	state at the time of the user's death.
110	110	(b) This chapter does not apply to a digital asset of an
111	111	employer used by an employee in the ordinary course of the
112	112	employer's business.
113	113	Sec. 2001.004. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
114	114	In applying and construing this chapter, consideration must be
115	115	given to the need to promote uniformity of the law, with respect to
116	116	the subject matter of this chapter, among states that enact a law
117	117	based on the uniform act on which this chapter is based.
118	118	Sec. 2001.005. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
119	119	AND NATIONAL COMMERCE ACT. This chapter modifies, limits, and
120	120	supersedes the federal Electronic Signatures in Global and National
121	121	Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify,
122	122	limit, or supersede Section 101(c) of that Act (15 U.S.C. Section
123	123	7001(c)) or authorize electronic delivery of any of the notices
124	124	described in Section 103(b) of that Act (15 U.S.C. Section
125	125	7003(b)).
126	126	SUBCHAPTER B. GENERAL PROCEDURES FOR ACCESS TO DIGITAL ASSETS
127	127	Sec. 2001.051. USER DIRECTION FOR DISCLOSURE OF DIGITAL
128	128	ASSETS. (a) A user may use an online tool to direct the custodian
129	129	to disclose or not to disclose to a designated recipient some or all
130	130	of the user's digital assets, including the content of an
131	131	electronic communication. If the online tool allows the user to
132	132	modify or delete a direction at all times, a direction regarding
133	133	disclosure using an online tool overrides a contrary direction by
134	134	the user in a will, trust, power of attorney, or other record.
135	135	(b) If a user has not used an online tool to give direction
136	136	under Subsection (a) or if the custodian has not provided an online
137	137	tool, the user may allow or prohibit disclosure to a fiduciary of
138	138	some or all of the user's digital assets, including the content of
139	139	an electronic communication sent or received by the user, in a will,
140	140	trust, power of attorney, or other record.
141	141	(c) A user's direction under Subsection (a) or (b) overrides
142	142	a contrary provision in a terms-of-service agreement that does not
143	143	require the user to act affirmatively and distinctly from the
144	144	user's assent to the terms of service.
145	145	Sec. 2001.052. TERMS-OF-SERVICE AGREEMENT. (a) This
146	146	chapter does not change or impair a right of a custodian or a user
147	147	under a terms-of-service agreement to access and use digital assets
148	148	of the user.
149	149	(b) This chapter does not give a fiduciary or designated
150	150	recipient any new or expanded rights other than those held by the
151	151	user for whom, or for whose estate or trust, the fiduciary or
152	152	designated recipient acts or represents.
153	153	(c) A fiduciary's or designated recipient's access to
154	154	digital assets may be modified or eliminated by a user, by federal
155	155	law, or by a terms-of-service agreement if the user has not provided
156	156	direction under Section 2001.051.
157	157	Sec. 2001.053. PROCEDURE FOR DISCLOSING DIGITAL ASSETS.
158	158	(a) When disclosing digital assets of a user under this chapter,
159	159	the custodian may, at the custodian's sole discretion:
160	160	(1) grant a fiduciary or designated recipient full
161	161	access to the user's account;
162	162	(2) grant a fiduciary or designated recipient partial
163	163	access to the user's account sufficient to perform the tasks with
164	164	which the fiduciary or designated recipient is charged; or
165	165	(3) provide a fiduciary or designated recipient a copy
166	166	in a record of any digital asset that, on the date the custodian
167	167	received the request for disclosure, the user could have accessed
168	168	if the user were alive and had full capacity and access to the
169	169	account.
170	170	(b) A custodian may assess a reasonable administrative
171	171	charge for the cost of disclosing digital assets under this
172	172	chapter.
173	173	(c) A custodian is not required to disclose under this
174	174	chapter a digital asset deleted by a user.
175	175	(d) If a user directs or a fiduciary requests a custodian to
176	176	disclose under this chapter some, but not all, of the user's digital
177	177	assets, the custodian is not required to disclose the assets if
178	178	segregation of the assets would impose an undue burden on the
179	179	custodian. If the custodian believes the direction or request
180	180	imposes an undue burden, the custodian or fiduciary may seek an
181	181	order from the court to disclose:
182	182	(1) a subset limited by date of the user's digital
183	183	assets;
184	184	(2) all of the user's digital assets to the fiduciary
185	185	or designated recipient;
186	186	(3) none of the user's digital assets; or
187	187	(4) all of the user's digital assets to the court for
188	188	review in camera.
189	189	SUBCHAPTER C. PROCEDURES FOR DISCLOSURE OF DIGITAL ASSETS OF
190	190	DECEASED USER
191	191	Sec. 2001.101. DISCLOSURE OF CONTENT OF ELECTRONIC
192	192	COMMUNICATIONS OF DECEASED USER. (a) If a deceased user consented
193	193	to or a court directs disclosure of the content of an electronic
194	194	communication of the user, the custodian shall disclose to the
195	195	personal representative of the estate of the user the content of an
196	196	electronic communication sent or received by the user if the
197	197	representative gives the custodian:
198	198	(1) a written request for disclosure in physical or
199	199	electronic form;
200	200	(2) a certified copy of the death certificate of the
201	201	user;
202	202	(3) a certified copy of letters testamentary or of
203	203	administration, a small estate affidavit filed under Section
204	204	205.001, or other court order; and
205	205	(4) unless the user provided direction using an online
206	206	tool, a copy of the user's will, trust, power of attorney, or other
207	207	record evidencing the user's consent to disclosure of the content
208	208	of an electronic communication if the user consented to the
209	209	disclosure.
210	210	(b) In addition to the items required to be given to the
211	211	custodian under Subsection (a), the personal representative shall
212	212	provide the following if requested by the custodian:
213	213	(1) a number, user name, address, or other unique
214	214	subscriber or account identifier assigned by the custodian to
215	215	identify the deceased user's account;
216	216	(2) evidence linking the account to the user; or
217	217	(3) a finding by the court that:
218	218	(A) the deceased user had a specific account with
219	219	the custodian, identifiable by the information specified in
220	220	Subdivision (1);
221	221	(B) disclosure of the content of an electronic
222	222	communication of the user would not violate 18 U.S.C. Section 2701
223	223	et seq., 47 U.S.C. Section 222, or other applicable law;
224	224	(C) unless the user provided direction using an
225	225	online tool, the user consented to disclosure of the content of an
226	226	electronic communication; or
227	227	(D) disclosure of the content of an electronic
228	228	communication of the user is reasonably necessary for
229	229	administration of the estate.
230	230	Sec. 2001.102. DISCLOSURE OF OTHER DIGITAL ASSETS OF
231	231	DECEASED USER. (a) Unless the deceased user prohibited disclosure
232	232	of digital assets or the court directs otherwise, a custodian shall
233	233	disclose to the personal representative of the estate of a deceased
234	234	user a catalog of electronic communications sent or received by the
235	235	user and digital assets, other than the content of an electronic
236	236	communication, of the user if the representative gives the
237	237	custodian:
238	238	(1) a written request for disclosure in physical or
239	239	electronic form;
240	240	(2) a certified copy of the death certificate of the
241	241	user; and
242	242	(3) a certified copy of letters testamentary or of
243	243	administration, a small estate affidavit filed under Section
244	244	205.001, or other court order.
245	245	(b) In addition to the items required to be given to the
246	246	custodian under Subsection (a), the personal representative shall
247	247	provide the following if requested by the custodian:
248	248	(1) a number, user name, address, or other unique
249	249	subscriber or account identifier assigned by the custodian to
250	250	identify the deceased user's account;
251	251	(2) evidence linking the account to the user;
252	252	(3) an affidavit stating that disclosure of the user's
253	253	digital assets is reasonably necessary for administration of the
254	254	estate; or
255	255	(4) a finding by the court that:
256	256	(A) the deceased user had a specific account with
257	257	the custodian, identifiable by the information specified in
258	258	Subdivision (1); or
259	259	(B) disclosure of the user's digital assets is
260	260	reasonably necessary for administration of the estate.
261	261	SUBCHAPTER D. PROCEDURES FOR DISCLOSURE OF DIGITAL ASSETS OF
262	262	PRINCIPAL
263	263	Sec. 2001.131. DISCLOSURE OF CONTENT OF ELECTRONIC
264	264	COMMUNICATIONS OF PRINCIPAL. (a) To the extent a power of attorney
265	265	expressly grants an agent authority over the content of an
266	266	electronic communication sent or received by the principal and
267	267	unless directed otherwise by the principal or the court, a
268	268	custodian shall disclose to the agent the content of an electronic
269	269	communication if the agent gives the custodian:
270	270	(1) a written request for disclosure in physical or
271	271	electronic form;
272	272	(2) an original or copy of the power of attorney
273	273	expressly granting the agent authority over the content of an
274	274	electronic communication of the principal; and
275	275	(3) a certification by the agent, under penalty of
276	276	perjury, that the power of attorney is in effect.
277	277	(b) In addition to the items required to be given to the
278	278	custodian under Subsection (a), the agent shall provide the
279	279	following if requested by the custodian:
280	280	(1) a number, user name, address, or other unique
281	281	subscriber or account identifier assigned by the custodian to
282	282	identify the principal's account; or
283	283	(2) evidence linking the account to the principal.
284	284	Sec. 2001.132. DISCLOSURE OF OTHER DIGITAL ASSETS OF
285	285	PRINCIPAL. (a) Unless otherwise ordered by the court, directed by
286	286	the principal, or provided by a power of attorney, a custodian shall
287	287	disclose to an agent with specific authority over digital assets or
288	288	general authority to act on behalf of a principal a catalog of
289	289	electronic communications sent or received by the principal and
290	290	digital assets of the principal, other than the content of an
291	291	electronic communication, if the agent gives the custodian:
292	292	(1) a written request for disclosure in physical or
293	293	electronic form;
294	294	(2) an original or copy of the power of attorney that
295	295	gives the agent specific authority over digital assets or general
296	296	authority to act on behalf of the principal; and
297	297	(3) a certification by the agent, under penalty of
298	298	perjury, that the power of attorney is in effect.
299	299	(b) In addition to the items required to be given to the
300	300	custodian under Subsection (a), the agent shall provide the
301	301	following if requested by the custodian:
302	302	(1) a number, user name, address, or other unique
303	303	subscriber or account identifier assigned by the custodian to
304	304	identify the principal's account; or
305	305	(2) evidence linking the account to the principal.
306	306	SUBCHAPTER E. DISCLOSURE OF DIGITAL ASSETS HELD IN TRUST
307	307	Sec. 2001.151. DISCLOSURE OF DIGITAL ASSETS HELD IN TRUST
308	308	WHEN TRUSTEE IS ORIGINAL USER. Unless otherwise ordered by the
309	309	court or provided in a trust, a custodian shall disclose to a
310	310	trustee that is an original user of an account any digital asset of
311	311	the account held in trust, including a catalog of electronic
312	312	communications of the trustee and the content of an electronic
313	313	communication.
314	314	Sec. 2001.152. DISCLOSURE OF CONTENT OF ELECTRONIC
315	315	COMMUNICATIONS HELD IN TRUST WHEN TRUSTEE IS NOT ORIGINAL USER. (a)
316	316	Unless otherwise ordered by the court, directed by the user, or
317	317	provided in a trust, a custodian shall disclose to a trustee that is
318	318	not an original user of an account the content of an electronic
319	319	communication sent or received by an original or successor user and
320	320	carried, maintained, processed, received, or stored by the
321	321	custodian in the account of the trust if the trustee gives the
322	322	custodian:
323	323	(1) a written request for disclosure in physical or
324	324	electronic form;
325	325	(2) a certified copy of the trust instrument or a
326	326	certification of trust under Section 114.086, Property Code, that
327	327	includes consent to disclosure of the content of an electronic
328	328	communication to the trustee; and
329	329	(3) a certification by the trustee, under penalty of
330	330	perjury, that the trust exists and the trustee is a currently acting
331	331	trustee of the trust.
332	332	(b) In addition to the items required to be given to the
333	333	custodian under Subsection (a), the trustee shall provide the
334	334	following if requested by the custodian:
335	335	(1) a number, user name, address, or other unique
336	336	subscriber or account identifier assigned by the custodian to
337	337	identify the trust's account; or
338	338	(2) evidence linking the account to the trust.
339	339	Sec. 2001.153. DISCLOSURE OF OTHER DIGITAL ASSETS HELD IN
340	340	TRUST WHEN TRUSTEE IS NOT ORIGINAL USER. (a) Unless otherwise
341	341	ordered by the court, directed by the user, or provided in a trust,
342	342	a custodian shall disclose to a trustee that is not an original user
343	343	of an account a catalog of electronic communications sent or
344	344	received by an original or successor user and stored, carried, or
345	345	maintained by the custodian in an account of the trust and any
346	346	digital assets in which the trust has a right or interest, other
347	347	than the content of an electronic communication, if the trustee
348	348	gives the custodian:
349	349	(1) a written request for disclosure in physical or
350	350	electronic form;
351	351	(2) a certified copy of the trust instrument or a
352	352	certification of trust under Section 114.086, Property Code; and
353	353	(3) a certification by the trustee, under penalty of
354	354	perjury, that the trust exists and the trustee is a currently acting
355	355	trustee of the trust.
356	356	(b) In addition to the items required to be given to the
357	357	custodian under Subsection (a), the trustee shall provide the
358	358	following if requested by the custodian:
359	359	(1) a number, user name, address, or other unique
360	360	subscriber or account identifier assigned by the custodian to
361	361	identify the trust's account; or
362	362	(2) evidence linking the account to the trust.
363	363	SUBCHAPTER F. DISCLOSURE OF DIGITAL ASSETS TO GUARDIAN
364	364	Sec. 2001.171. DISCLOSURE OF DIGITAL ASSETS TO GUARDIAN.
365	365	(a) After an opportunity for a hearing under Title 3, the court may
366	366	grant the guardian of a ward access to the digital assets of the
367	367	ward.
368	368	(b) Unless otherwise ordered by the court or directed by the
369	369	user, a custodian shall disclose to the guardian of a ward the
370	370	catalog of electronic communications sent or received by the ward
371	371	and any digital assets in which the ward has a right or interest,
372	372	other than the content of an electronic communication, if the
373	373	guardian gives the custodian:
374	374	(1) a written request for disclosure in physical or
375	375	electronic form; and
376	376	(2) a certified copy of the court order that gives the
377	377	guardian authority over the digital assets of the ward.
378	378	(c) In addition to the items required to be given to the
379	379	custodian under Subsection (b), the guardian shall provide the
380	380	following if requested by the custodian:
381	381	(1) a number, user name, address, or other unique
382	382	subscriber or account identifier assigned by the custodian to
383	383	identify the account of the ward; or
384	384	(2) evidence linking the account to the ward.
385	385	(d) The guardian of a ward may request a custodian of the
386	386	digital assets of the ward to suspend or terminate an account of the
387	387	ward for good cause. A request made under this section must be
388	388	accompanied by a certified copy of the court order giving the
389	389	guardian authority over the ward's digital assets.
390	390	SUBCHAPTER G. DUTY AND AUTHORITY OF FIDUCIARY AND OTHERS REGARDING
391	391	DIGITAL ASSETS
392	392	Sec. 2001.201. FIDUCIARY DUTY AND AUTHORITY. (a) The legal
393	393	duties imposed on a fiduciary charged with managing tangible
394	394	property apply to the management of digital assets, including:
395	395	(1) the duty of care;
396	396	(2) the duty of loyalty; and
397	397	(3) the duty of confidentiality.
398	398	(b) A fiduciary's or designated recipient's authority with
399	399	respect to a digital asset of a user:
400	400	(1) except as otherwise provided by Section 2001.051,
401	401	is subject to the applicable terms of service;
402	402	(2) is subject to other applicable law, including
403	403	copyright law;
404	404	(3) in the case of a fiduciary, is limited by the scope
405	405	of the fiduciary's duties; and
406	406	(4) may not be used to impersonate the user.
407	407	(c) A fiduciary with authority over the property of a
408	408	decedent, ward, principal, or settlor has the right to access any
409	409	digital asset in which the decedent, ward, principal, or settlor
410	410	has or had a right or interest and that is not held by a custodian or
411	411	subject to a terms-of-service agreement.
412	412	(d) A fiduciary acting within the scope of the fiduciary's
413	413	duties is an authorized user of the property of the decedent, ward,
414	414	principal, or settlor for the purpose of applicable computer fraud
415	415	and unauthorized computer access laws, including all laws of this
416	416	state governing unauthorized computer access.
417	417	(e) A fiduciary with authority over the tangible personal
418	418	property of a decedent, ward, principal, or settlor:
419	419	(1) has the right to access the property and any
420	420	digital asset stored in it; and
421	421	(2) is an authorized user for the purpose of
422	422	applicable computer fraud and unauthorized computer access laws,
423	423	including all laws of this state governing unauthorized computer
424	424	access.
425	425	Sec. 2001.202. AUTHORITY TO TERMINATE ACCOUNT. (a) A
426	426	custodian may disclose information in an account to a fiduciary of
427	427	the user when the information is required to terminate an account
428	428	used to access digital assets licensed to the user.
429	429	(b) A fiduciary of a user may request a custodian to
430	430	terminate the user's account. A request for termination must be in
431	431	writing, in physical or electronic form, and accompanied by:
432	432	(1) if the user is deceased, a certified copy of the
433	433	death certificate of the user; and
434	434	(2) one of the following giving the fiduciary
435	435	authority over the account:
436	436	(A) a certified copy of letters testamentary or
437	437	of administration, a small estate affidavit filed under Section
438	438	205.001, or other court order;
439	439	(B) a power of attorney; or
440	440	(C) the trust instrument.
441	441	(c) In addition to the items required to accompany a
442	442	termination request under Subsection (b), the fiduciary shall
443	443	provide the following if requested by the custodian:
444	444	(1) a number, user name, address, or other unique
445	445	subscriber or account identifier assigned by the custodian to
446	446	identify the user's account;
447	447	(2) evidence linking the account to the user; or
448	448	(3) a finding by the court that the user had a specific
449	449	account with the custodian, identifiable by the information
450	450	specified in Subdivision (1).
451	451	SUBCHAPTER H. CUSTODIAN COMPLIANCE AND IMMUNITY REGARDING DIGITAL
452	452	ASSETS
453	453	Sec. 2001.231. CUSTODIAN COMPLIANCE AND IMMUNITY. (a) Not
454	454	later than 60 days after receipt of the information required under
455	455	Subchapter C, D, E, F, or G, a custodian shall comply with a request
456	456	under this chapter from a fiduciary or designated recipient to
457	457	disclose digital assets or terminate an account. If the custodian
458	458	fails to comply, the fiduciary or designated recipient may apply to
459	459	the court for an order directing compliance.
460	460	(b) An order under Subsection (a) directing compliance must
461	461	contain a finding that compliance is not in violation of 18 U.S.C.
462	462	Section 2702.
463	463	(c) A custodian may notify the user that a request for
464	464	disclosure or to terminate an account was made under this chapter.
465	465	(d) A custodian may deny a request under this chapter from a
466	466	fiduciary or designated recipient for disclosure of digital assets
467	467	or to terminate an account if the custodian is aware of any lawful
468	468	access to the account following the receipt of the request.
469	469	(e) This chapter does not limit a custodian's ability to
470	470	obtain or require a fiduciary or designated recipient requesting
471	471	disclosure or termination under this chapter to obtain a court
472	472	order that:
473	473	(1) specifies that an account belongs to the ward or
474	474	principal;
475	475	(2) specifies that there is sufficient consent from
476	476	the ward or principal to support the requested disclosure; and
477	477	(3) contains a finding required by a law other than
478	478	this chapter.
479	479	Sec. 2001.232. IMMUNITY FROM LIABILITY. A custodian and
480	480	the custodian's officers, employees, and agents are immune from
481	481	liability for an act or omission done in good faith in compliance
482	482	with this chapter.
483	483	SECTION 2. Section 752.051, Estates Code, is amended to
484	484	read as follows:
485	485	Sec. 752.051. FORM. The following form is known as a
486	486	"statutory durable power of attorney":
487	487	STATUTORY DURABLE POWER OF ATTORNEY
488	488	NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING.
489	489	THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P,
490	490	TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE
491	491	POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
492	492	AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS
493	493	FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO
494	494	DO SO.
495	495	You should select someone you trust to serve as your agent
496	496	(attorney in fact). Unless you specify otherwise, generally the
497	497	agent's (attorney in fact's) authority will continue until:
498	498	(1) you die or revoke the power of attorney;
499	499	(2) your agent (attorney in fact) resigns or is unable
500	500	to act for you; or
501	501	(3) a guardian is appointed for your estate.
502	502	I, __________ (insert your name and address), appoint
503	503	__________ (insert the name and address of the person appointed) as
504	504	my agent (attorney in fact) to act for me in any lawful way with
505	505	respect to all of the following powers that I have initialed below.
506	506	TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN
507	507	FRONT OF (O) [(N)] AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS
508	508	LISTED IN (A) THROUGH (N) [(M)].
509	509	TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
510	510	POWER YOU ARE GRANTING.
511	511	TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
512	512	POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD.
513	513	____ (A) Real property transactions;
514	514	____ (B) Tangible personal property transactions;
515	515	____ (C) Stock and bond transactions;
516	516	____ (D) Commodity and option transactions;
517	517	____ (E) Banking and other financial institution
518	518	transactions;
519	519	____ (F) Business operating transactions;
520	520	____ (G) Insurance and annuity transactions;
521	521	____ (H) Estate, trust, and other beneficiary transactions;
522	522	____ (I) Claims and litigation;
523	523	____ (J) Personal and family maintenance;
524	524	____ (K) Benefits from social security, Medicare, Medicaid,
525	525	or other governmental programs or civil or military service;
526	526	____ (L) Retirement plan transactions;
527	527	____ (M) Tax matters;
528	528	____ (N) Digital assets and the content of an electronic
529	529	communication;
530	530	____ (O) [(N)] ALL OF THE POWERS LISTED IN (A) THROUGH (N)
531	531	[(M)]. YOU DO NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER
532	532	POWER IF YOU INITIAL LINE (O) [(N)].
533	533	SPECIAL INSTRUCTIONS:
534	534	Special instructions applicable to gifts (initial in front of
535	535	the following sentence to have it apply):
536	536	____ I grant my agent (attorney in fact) the power to apply my
537	537	property to make gifts outright to or for the benefit of a person,
538	538	including by the exercise of a presently exercisable general power
539	539	of appointment held by me, except that the amount of a gift to an
540	540	individual may not exceed the amount of annual exclusions allowed
541	541	from the federal gift tax for the calendar year of the gift.
542	542	ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
543	543	LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
544	544	________________________________________________________________
545	545	________________________________________________________________
546	546	________________________________________________________________
547	547	________________________________________________________________
548	548	________________________________________________________________
549	549	________________________________________________________________
550	550	________________________________________________________________
551	551	________________________________________________________________
552	552	________________________________________________________________
553	553	UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
554	554	EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
555	555	CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
556	556	ALTERNATIVE NOT CHOSEN:
557	557	(A) This power of attorney is not affected by my subsequent
558	558	disability or incapacity.
559	559	(B) This power of attorney becomes effective upon my
560	560	disability or incapacity.
561	561	YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
562	562	IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
563	563	IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
564	564	YOU CHOSE ALTERNATIVE (A).
565	565	If Alternative (B) is chosen and a definition of my
566	566	disability or incapacity is not contained in this power of
567	567	attorney, I shall be considered disabled or incapacitated for
568	568	purposes of this power of attorney if a physician certifies in
569	569	writing at a date later than the date this power of attorney is
570	570	executed that, based on the physician's medical examination of me,
571	571	I am mentally incapable of managing my financial affairs. I
572	572	authorize the physician who examines me for this purpose to
573	573	disclose my physical or mental condition to another person for
574	574	purposes of this power of attorney. A third party who accepts this
575	575	power of attorney is fully protected from any action taken under
576	576	this power of attorney that is based on the determination made by a
577	577	physician of my disability or incapacity.
578	578	I agree that any third party who receives a copy of this
579	579	document may act under it. Revocation of the durable power of
580	580	attorney is not effective as to a third party until the third party
581	581	receives actual notice of the revocation. I agree to indemnify the
582	582	third party for any claims that arise against the third party
583	583	because of reliance on this power of attorney.
584	584	If any agent named by me dies, becomes legally disabled,
585	585	resigns, or refuses to act, I name the following (each to act alone
586	586	and successively, in the order named) as successor(s) to that
587	587	agent: __________.
588	588	Signed this ______ day of __________, _____________
589	589	________________________________
590	590	(your signature)
591	591	State of _______________________
592	592	County of ______________________
593	593	This document was acknowledged before me on ____________(date) by
594	594	________________________
595	595	(name of principal)
596	596	_______________________________
597	597	(signature of notarial officer)
598	598	(Seal, if any, of notary) _______________________________________
599	599	(printed name)
600	600	My commission expires: ______________
601	601	IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)
602	602	Agent's Duties
603	603	When you accept the authority granted under this power of
604	604	attorney, you establish a "fiduciary" relationship with the
605	605	principal. This is a special legal relationship that imposes on you
606	606	legal duties that continue until you resign or the power of attorney
607	607	is terminated or revoked by the principal or by operation of law. A
608	608	fiduciary duty generally includes the duty to:
609	609	(1) act in good faith;
610	610	(2) do nothing beyond the authority granted in this
611	611	power of attorney;
612	612	(3) act loyally for the principal's benefit;
613	613	(4) avoid conflicts that would impair your ability to
614	614	act in the principal's best interest; and
615	615	(5) disclose your identity as an agent or attorney in
616	616	fact when you act for the principal by writing or printing the name
617	617	of the principal and signing your own name as "agent" or "attorney
618	618	in fact" in the following manner:
619	619	(Principal's Name) by (Your Signature) as Agent (or as
620	620	Attorney in Fact)
621	621	In addition, the Durable Power of Attorney Act (Subtitle P,
622	622	Title 2, Estates Code) requires you to:
623	623	(1) maintain records of each action taken or decision
624	624	made on behalf of the principal;
625	625	(2) maintain all records until delivered to the
626	626	principal, released by the principal, or discharged by a court; and
627	627	(3) if requested by the principal, provide an
628	628	accounting to the principal that, unless otherwise directed by the
629	629	principal or otherwise provided in the Special Instructions, must
630	630	include:
631	631	(A) the property belonging to the principal that
632	632	has come to your knowledge or into your possession;
633	633	(B) each action taken or decision made by you as
634	634	agent or attorney in fact;
635	635	(C) a complete account of receipts,
636	636	disbursements, and other actions of you as agent or attorney in fact
637	637	that includes the source and nature of each receipt, disbursement,
638	638	or action, with receipts of principal and income shown separately;
639	639	(D) a listing of all property over which you have
640	640	exercised control that includes an adequate description of each
641	641	asset and the asset's current value, if known to you;
642	642	(E) the cash balance on hand and the name and
643	643	location of the depository at which the cash balance is kept;
644	644	(F) each known liability;
645	645	(G) any other information and facts known to you
646	646	as necessary for a full and definite understanding of the exact
647	647	condition of the property belonging to the principal; and
648	648	(H) all documentation regarding the principal's
649	649	property.
650	650	Termination of Agent's Authority
651	651	You must stop acting on behalf of the principal if you learn
652	652	of any event that terminates this power of attorney or your
653	653	authority under this power of attorney. An event that terminates
654	654	this power of attorney or your authority to act under this power of
655	655	attorney includes:
656	656	(1) the principal's death;
657	657	(2) the principal's revocation of this power of
658	658	attorney or your authority;
659	659	(3) the occurrence of a termination event stated in
660	660	this power of attorney;
661	661	(4) if you are married to the principal, the
662	662	dissolution of your marriage by court decree of divorce or
663	663	annulment;
664	664	(5) the appointment and qualification of a permanent
665	665	guardian of the principal's estate; or
666	666	(6) if ordered by a court, the suspension of this power
667	667	of attorney on the appointment and qualification of a temporary
668	668	guardian until the date the term of the temporary guardian expires.
669	669	Liability of Agent
670	670	The authority granted to you under this power of attorney is
671	671	specified in the Durable Power of Attorney Act (Subtitle P, Title 2,
672	672	Estates Code). If you violate the Durable Power of Attorney Act or
673	673	act beyond the authority granted, you may be liable for any damages
674	674	caused by the violation or subject to prosecution for
675	675	misapplication of property by a fiduciary under Chapter 32 of the
676	676	Texas Penal Code.
677	677	THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
678	678	THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
679	679	RESPONSIBILITIES OF AN AGENT.
680	680	SECTION 3. Subchapter C, Chapter 752, Estates Code, is
681	681	amended by adding Section 752.1145 to read as follows:
682	682	Sec. 752.1145. DIGITAL ASSET TRANSACTIONS. (a) In this
683	683	section, "digital asset" has the meaning assigned by Section
684	684	2001.002.
685	685	(b) The language conferring authority with respect to
686	686	digital assets in a statutory durable power of attorney empowers
687	687	the attorney in fact or agent, without further reference to a
688	688	specific digital asset, to access digital assets as provided in
689	689	Chapter 2001.
690	690	SECTION 4. Section 752.115, Estates Code, is amended to
691	691	read as follows:
692	692	Sec. 752.115. EXISTING INTERESTS; FOREIGN INTERESTS. The
693	693	powers described by Sections 752.102-752.1145 [752.102-752.114]
694	694	may be exercised equally with respect to an interest the principal
695	695	has at the time the durable power of attorney is executed or
696	696	acquires later, whether or not:
697	697	(1) the property is located in this state; or
698	698	(2) the powers are exercised or the durable power of
699	699	attorney is executed in this state.
700	700	SECTION 5. Section 1151.101, Estates Code, is amended by
701	701	amending Subsection (a) and adding Subsection (c) to read as
702	702	follows:
703	703	(a) Subject to Subsection (b), the guardian of the estate of
704	704	a ward is entitled to:
705	705	(1) possess and manage all property belonging to the
706	706	ward;
707	707	(2) collect all debts, rentals, or claims that are due
708	708	to the ward;
709	709	(3) enforce all obligations in favor of the ward;
710	710	[and]
711	711	(4) bring and defend suits by or against the ward; and
712	712	(5) access the ward's digital assets as provided by
713	713	Chapter 2001.
714	714	(c) In this section, "digital asset" has the meaning
715	715	assigned by Section 2001.002.
716	716	SECTION 6. Subchapter A, Chapter 113, Property Code, is
717	717	amended by adding Section 113.031 to read as follows:
718	718	Sec. 113.031. DIGITAL ASSETS. (a) In this section,
719	719	"digital asset" has the meaning assigned by Section 2001.002,
720	720	Estates Code.
721	721	(b) A trustee may access digital assets as provided by
722	722	Chapter 2001, Estates Code.
723	723	SECTION 7. Chapter 2001, Estates Code, as added by this Act,
724	724	applies to:
725	725	(1) a fiduciary acting under a will or power of
726	726	attorney executed before, on, or after the effective date of this
727	727	Act;
728	728	(2) a personal representative acting for a decedent
729	729	who died before, on, or after the effective date of this Act;
730	730	(3) a guardian appointed to act for a ward in a
731	731	guardianship proceeding commenced before, on, or after the
732	732	effective date of this Act; and
733	733	(4) a trustee acting under a trust created before, on,
734	734	or after the effective date of this Act.
735	735	SECTION 8. This Act takes effect September 1, 2017.