85R9410 MTB-F
By: Parker H.B. No. 2158
A BILL TO BE ENTITLED
AN ACT
relating to the adoption of the Texas Revised Uniform Fiduciary
Access to Digital Assets Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The Estates Code is amended by adding Title 4 to
read as follows:
TITLE 4. DIGITAL ASSETS
CHAPTER 2001. TEXAS REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL
ASSETS ACT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 2001.001. SHORT TITLE. This chapter may be cited as
the Texas Revised Uniform Fiduciary Access to Digital Assets Act.
Sec. 2001.002. DEFINITIONS. In this chapter:
(1) "Account" means an arrangement under a
terms-of-service agreement in which a custodian carries,
maintains, processes, receives, or stores a digital asset of the
user or provides goods or services to the user.
(2) "Agent" means an attorney in fact granted
authority to act for a principal under a durable or other power of
attorney. The term does not include an agent under a medical power
of attorney.
(3) "Carries" means to engage in the transmission of
an electronic communication.
(4) "Catalog of electronic communications" means
information that identifies each person with whom a user has had an
electronic communication, the time and date of the communication,
and the electronic address of the person.
(5) "Content of an electronic communication" means
information concerning the substance or meaning of an electronic
communication that:
(A) has been sent, uploaded, received, or
downloaded by a user;
(B) is in electronic storage by a custodian
providing an electronic communication service to the public or is
carried or maintained by a custodian providing a remote computing
service to the public; and
(C) is not readily accessible to the public.
(6) "Custodian" means a person that carries,
maintains, processes, receives, or stores a digital asset of a
user.
(7) "Designated recipient" means a person chosen by a
user using an online tool to administer digital assets of the user.
(8) "Digital asset" means an electronic record in
which an individual has a right or interest. The term does not
include an underlying asset or liability unless the asset or
liability is itself an electronic record.
(9) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic,
or similar capabilities.
(10) "Electronic communication" has the meaning
assigned by 18 U.S.C. Section 2510(12), as it existed on January 1,
2017.
(11) "Electronic communication service" means a
custodian that provides to a user the ability to send or receive an
electronic communication.
(12) "Fiduciary" means an original, additional, or
successor personal representative, guardian, agent, or trustee.
(13) "Guardian" has the meaning assigned by Section
1002.012, except that the term does not include a guardian of the
person of a ward.
(14) "Information" means data, text, images, videos,
sounds, codes, computer programs, software, databases, or the like.
(15) "Online tool" means an electronic service
provided by a custodian that allows the user, in an agreement
distinct from the terms-of-service agreement between the custodian
and user, to provide directions for disclosure or nondisclosure of
digital assets to a third person.
(16) "Person" has the meaning assigned by Section
311.005, Government Code.
(17) "Personal representative," notwithstanding
Section 22.031, means:
(A) an executor or independent executor;
(B) an administrator, independent administrator,
or temporary administrator;
(C) a successor to an executor or administrator
listed in Paragraph (A) or (B); or
(D) a person who performs functions
substantially similar to those performed by the persons listed in
Paragraphs (A), (B), or (C) under the laws of this state, other than
this chapter.
(18) "Power of attorney" means a record that grants an
agent authority to act in the place of a principal with regard to
property matters, including a durable power of attorney as provided
by Subtitle P, Title 2. The term does not include a medical power of
attorney.
(19) "Principal" means an individual who grants
authority to an agent in a power of attorney.
(20) "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.
(21) "Remote computing service" means a custodian that
provides to a user computer processing services or the storage of
digital assets by means of an electronic communications system, as
defined by 18 U.S.C. Section 2510(14), as it existed on January 1,
2017.
(22) "Terms-of-service agreement" means an agreement
that controls the relationship between a user and a custodian.
(23) "Trustee" has the meaning assigned by Section
111.004, Property Code.
(24) "User" means a person who has an account with a
custodian.
Sec. 2001.003. APPLICABILITY. (a) This chapter applies to
a custodian if the user resides in this state or resided in this
state at the time of the user's death.
(b) This chapter does not apply to a digital asset of an
employer used by an employee in the ordinary course of the
employer's business.
Sec. 2001.004. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
In applying and construing this chapter, consideration must be
given to the need to promote uniformity of the law, with respect to
the subject matter of this chapter, among states that enact a law
based on the uniform act on which this chapter is based.
Sec. 2001.005. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. This chapter modifies, limits, and
supersedes the federal Electronic Signatures in Global and National
Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify,
limit, or supersede Section 101(c) of that Act (15 U.S.C. Section
7001(c)) or authorize electronic delivery of any of the notices
described in Section 103(b) of that Act (15 U.S.C. Section
7003(b)).
SUBCHAPTER B. GENERAL PROCEDURES FOR ACCESS TO DIGITAL ASSETS
Sec. 2001.051. USER DIRECTION FOR DISCLOSURE OF DIGITAL
ASSETS. (a) A user may use an online tool to direct the custodian
to disclose or not to disclose to a designated recipient some or all
of the user's digital assets, including the content of an
electronic communication. If the online tool allows the user to
modify or delete a direction at all times, a direction regarding
disclosure using an online tool overrides a contrary direction by
the user in a will, trust, power of attorney, or other record.
(b) If a user has not used an online tool to give direction
under Subsection (a) or if the custodian has not provided an online
tool, the user may allow or prohibit disclosure to a fiduciary of
some or all of the user's digital assets, including the content of
an electronic communication sent or received by the user, in a will,
trust, power of attorney, or other record.
(c) A user's direction under Subsection (a) or (b) overrides
a contrary provision in a terms-of-service agreement that does not
require the user to act affirmatively and distinctly from the
user's assent to the terms of service.
Sec. 2001.052. TERMS-OF-SERVICE AGREEMENT. (a) This
chapter does not change or impair a right of a custodian or a user
under a terms-of-service agreement to access and use digital assets
of the user.
(b) This chapter does not give a fiduciary or designated
recipient any new or expanded rights other than those held by the
user for whom, or for whose estate or trust, the fiduciary or
designated recipient acts or represents.
(c) A fiduciary's or designated recipient's access to
digital assets may be modified or eliminated by a user, by federal
law, or by a terms-of-service agreement if the user has not provided
direction under Section 2001.051.
Sec. 2001.053. PROCEDURE FOR DISCLOSING DIGITAL ASSETS.
(a) When disclosing digital assets of a user under this chapter,
the custodian may, at the custodian's sole discretion:
(1) grant a fiduciary or designated recipient full
access to the user's account;
(2) grant a fiduciary or designated recipient partial
access to the user's account sufficient to perform the tasks with
which the fiduciary or designated recipient is charged; or
(3) provide a fiduciary or designated recipient a copy
in a record of any digital asset that, on the date the custodian
received the request for disclosure, the user could have accessed
if the user were alive and had full capacity and access to the
account.
(b) A custodian may assess a reasonable administrative
charge for the cost of disclosing digital assets under this
chapter.
(c) A custodian is not required to disclose under this
chapter a digital asset deleted by a user.
(d) If a user directs or a fiduciary requests a custodian to
disclose under this chapter some, but not all, of the user's digital
assets, the custodian is not required to disclose the assets if
segregation of the assets would impose an undue burden on the
custodian. If the custodian believes the direction or request
imposes an undue burden, the custodian or fiduciary may seek an
order from the court to disclose:
(1) a subset limited by date of the user's digital
assets;
(2) all of the user's digital assets to the fiduciary
or designated recipient;
(3) none of the user's digital assets; or
(4) all of the user's digital assets to the court for
review in camera.
SUBCHAPTER C. PROCEDURES FOR DISCLOSURE OF DIGITAL ASSETS OF
DECEASED USER
Sec. 2001.101. DISCLOSURE OF CONTENT OF ELECTRONIC
COMMUNICATIONS OF DECEASED USER. (a) If a deceased user consented
to or a court directs disclosure of the content of an electronic
communication of the user, the custodian shall disclose to the
personal representative of the estate of the user the content of an
electronic communication sent or received by the user if the
representative gives the custodian:
(1) a written request for disclosure in physical or
electronic form;
(2) a certified copy of the death certificate of the
user;
(3) a certified copy of letters testamentary or of
administration, a small estate affidavit filed under Section
205.001, or other court order; and
(4) unless the user provided direction using an online
tool, a copy of the user's will, trust, power of attorney, or other
record evidencing the user's consent to disclosure of the content
of an electronic communication if the user consented to the
disclosure.
(b) In addition to the items required to be given to the
custodian under Subsection (a), the personal representative shall
provide the following if requested by the custodian:
(1) a number, user name, address, or other unique
subscriber or account identifier assigned by the custodian to
identify the deceased user's account;
(2) evidence linking the account to the user; or
(3) a finding by the court that:
(A) the deceased user had a specific account with
the custodian, identifiable by the information specified in
Subdivision (1);
(B) disclosure of the content of an electronic
communication of the user would not violate 18 U.S.C. Section 2701
et seq., 47 U.S.C. Section 222, or other applicable law;
(C) unless the user provided direction using an
online tool, the user consented to disclosure of the content of an
electronic communication; or
(D) disclosure of the content of an electronic
communication of the user is reasonably necessary for
administration of the estate.
Sec. 2001.102. DISCLOSURE OF OTHER DIGITAL ASSETS OF
DECEASED USER. (a) Unless the deceased user prohibited disclosure
of digital assets or the court directs otherwise, a custodian shall
disclose to the personal representative of the estate of a deceased
user a catalog of electronic communications sent or received by the
user and digital assets, other than the content of an electronic
communication, of the user if the representative gives the
custodian:
(1) a written request for disclosure in physical or
electronic form;
(2) a certified copy of the death certificate of the
user; and
(3) a certified copy of letters testamentary or of
administration, a small estate affidavit filed under Section
205.001, or other court order.
(b) In addition to the items required to be given to the
custodian under Subsection (a), the personal representative shall
provide the following if requested by the custodian:
(1) a number, user name, address, or other unique
subscriber or account identifier assigned by the custodian to
identify the deceased user's account;
(2) evidence linking the account to the user;
(3) an affidavit stating that disclosure of the user's
digital assets is reasonably necessary for administration of the
estate; or
(4) a finding by the court that:
(A) the deceased user had a specific account with
the custodian, identifiable by the information specified in
Subdivision (1); or
(B) disclosure of the user's digital assets is
reasonably necessary for administration of the estate.
SUBCHAPTER D. PROCEDURES FOR DISCLOSURE OF DIGITAL ASSETS OF
PRINCIPAL
Sec. 2001.131. DISCLOSURE OF CONTENT OF ELECTRONIC
COMMUNICATIONS OF PRINCIPAL. (a) To the extent a power of attorney
expressly grants an agent authority over the content of an
electronic communication sent or received by the principal and
unless directed otherwise by the principal or the court, a
custodian shall disclose to the agent the content of an electronic
communication if the agent gives the custodian:
(1) a written request for disclosure in physical or
electronic form;
(2) an original or copy of the power of attorney
expressly granting the agent authority over the content of an
electronic communication of the principal; and
(3) a certification by the agent, under penalty of
perjury, that the power of attorney is in effect.
(b) In addition to the items required to be given to the
custodian under Subsection (a), the agent shall provide the
following if requested by the custodian:
(1) a number, user name, address, or other unique
subscriber or account identifier assigned by the custodian to
identify the principal's account; or
(2) evidence linking the account to the principal.
Sec. 2001.132. DISCLOSURE OF OTHER DIGITAL ASSETS OF
PRINCIPAL. (a) Unless otherwise ordered by the court, directed by
the principal, or provided by a power of attorney, a custodian shall
disclose to an agent with specific authority over digital assets or
general authority to act on behalf of a principal a catalog of
electronic communications sent or received by the principal and
digital assets of the principal, other than the content of an
electronic communication, if the agent gives the custodian:
(1) a written request for disclosure in physical or
electronic form;
(2) an original or copy of the power of attorney that
gives the agent specific authority over digital assets or general
authority to act on behalf of the principal; and
(3) a certification by the agent, under penalty of
perjury, that the power of attorney is in effect.
(b) In addition to the items required to be given to the
custodian under Subsection (a), the agent shall provide the
following if requested by the custodian:
(1) a number, user name, address, or other unique
subscriber or account identifier assigned by the custodian to
identify the principal's account; or
(2) evidence linking the account to the principal.
SUBCHAPTER E. DISCLOSURE OF DIGITAL ASSETS HELD IN TRUST
Sec. 2001.151. DISCLOSURE OF DIGITAL ASSETS HELD IN TRUST
WHEN TRUSTEE IS ORIGINAL USER. Unless otherwise ordered by the
court or provided in a trust, a custodian shall disclose to a
trustee that is an original user of an account any digital asset of
the account held in trust, including a catalog of electronic
communications of the trustee and the content of an electronic
communication.
Sec. 2001.152. DISCLOSURE OF CONTENT OF ELECTRONIC
COMMUNICATIONS HELD IN TRUST WHEN TRUSTEE IS NOT ORIGINAL USER. (a)
Unless otherwise ordered by the court, directed by the user, or
provided in a trust, a custodian shall disclose to a trustee that is
not an original user of an account the content of an electronic
communication sent or received by an original or successor user and
carried, maintained, processed, received, or stored by the
custodian in the account of the trust if the trustee gives the
custodian:
(1) a written request for disclosure in physical or
electronic form;
(2) a certified copy of the trust instrument or a
certification of trust under Section 114.086, Property Code, that
includes consent to disclosure of the content of an electronic
communication to the trustee; and
(3) a certification by the trustee, under penalty of
perjury, that the trust exists and the trustee is a currently acting
trustee of the trust.
(b) In addition to the items required to be given to the
custodian under Subsection (a), the trustee shall provide the
following if requested by the custodian:
(1) a number, user name, address, or other unique
subscriber or account identifier assigned by the custodian to
identify the trust's account; or
(2) evidence linking the account to the trust.
Sec. 2001.153. DISCLOSURE OF OTHER DIGITAL ASSETS HELD IN
TRUST WHEN TRUSTEE IS NOT ORIGINAL USER. (a) Unless otherwise
ordered by the court, directed by the user, or provided in a trust,
a custodian shall disclose to a trustee that is not an original user
of an account a catalog of electronic communications sent or
received by an original or successor user and stored, carried, or
maintained by the custodian in an account of the trust and any
digital assets in which the trust has a right or interest, other
than the content of an electronic communication, if the trustee
gives the custodian:
(1) a written request for disclosure in physical or
electronic form;
(2) a certified copy of the trust instrument or a
certification of trust under Section 114.086, Property Code; and
(3) a certification by the trustee, under penalty of
perjury, that the trust exists and the trustee is a currently acting
trustee of the trust.
(b) In addition to the items required to be given to the
custodian under Subsection (a), the trustee shall provide the
following if requested by the custodian:
(1) a number, user name, address, or other unique
subscriber or account identifier assigned by the custodian to
identify the trust's account; or
(2) evidence linking the account to the trust.
SUBCHAPTER F. DISCLOSURE OF DIGITAL ASSETS TO GUARDIAN
Sec. 2001.171. DISCLOSURE OF DIGITAL ASSETS TO GUARDIAN.
(a) After an opportunity for a hearing under Title 3, the court may
grant the guardian of a ward access to the digital assets of the
ward.
(b) Unless otherwise ordered by the court or directed by the
user, a custodian shall disclose to the guardian of a ward the
catalog of electronic communications sent or received by the ward
and any digital assets in which the ward has a right or interest,
other than the content of an electronic communication, if the
guardian gives the custodian:
(1) a written request for disclosure in physical or
electronic form; and
(2) a certified copy of the court order that gives the
guardian authority over the digital assets of the ward.
(c) In addition to the items required to be given to the
custodian under Subsection (b), the guardian shall provide the
following if requested by the custodian:
(1) a number, user name, address, or other unique
subscriber or account identifier assigned by the custodian to
identify the account of the ward; or
(2) evidence linking the account to the ward.
(d) The guardian of a ward may request a custodian of the
digital assets of the ward to suspend or terminate an account of the
ward for good cause. A request made under this section must be
accompanied by a certified copy of the court order giving the
guardian authority over the ward's digital assets.
SUBCHAPTER G. DUTY AND AUTHORITY OF FIDUCIARY AND OTHERS REGARDING
DIGITAL ASSETS
Sec. 2001.201. FIDUCIARY DUTY AND AUTHORITY. (a) The legal
duties imposed on a fiduciary charged with managing tangible
property apply to the management of digital assets, including:
(1) the duty of care;
(2) the duty of loyalty; and
(3) the duty of confidentiality.
(b) A fiduciary's or designated recipient's authority with
respect to a digital asset of a user:
(1) except as otherwise provided by Section 2001.051,
is subject to the applicable terms of service;
(2) is subject to other applicable law, including
copyright law;
(3) in the case of a fiduciary, is limited by the scope
of the fiduciary's duties; and
(4) may not be used to impersonate the user.
(c) A fiduciary with authority over the property of a
decedent, ward, principal, or settlor has the right to access any
digital asset in which the decedent, ward, principal, or settlor
has or had a right or interest and that is not held by a custodian or
subject to a terms-of-service agreement.
(d) A fiduciary acting within the scope of the fiduciary's
duties is an authorized user of the property of the decedent, ward,
principal, or settlor for the purpose of applicable computer fraud
and unauthorized computer access laws, including all laws of this
state governing unauthorized computer access.
(e) A fiduciary with authority over the tangible personal
property of a decedent, ward, principal, or settlor:
(1) has the right to access the property and any
digital asset stored in it; and
(2) is an authorized user for the purpose of
applicable computer fraud and unauthorized computer access laws,
including all laws of this state governing unauthorized computer
access.
Sec. 2001.202. AUTHORITY TO TERMINATE ACCOUNT. (a) A
custodian may disclose information in an account to a fiduciary of
the user when the information is required to terminate an account
used to access digital assets licensed to the user.
(b) A fiduciary of a user may request a custodian to
terminate the user's account. A request for termination must be in
writing, in physical or electronic form, and accompanied by:
(1) if the user is deceased, a certified copy of the
death certificate of the user; and
(2) one of the following giving the fiduciary
authority over the account:
(A) a certified copy of letters testamentary or
of administration, a small estate affidavit filed under Section
205.001, or other court order;
(B) a power of attorney; or
(C) the trust instrument.
(c) In addition to the items required to accompany a
termination request under Subsection (b), the fiduciary shall
provide the following if requested by the custodian:
(1) a number, user name, address, or other unique
subscriber or account identifier assigned by the custodian to
identify the user's account;
(2) evidence linking the account to the user; or
(3) a finding by the court that the user had a specific
account with the custodian, identifiable by the information
specified in Subdivision (1).
SUBCHAPTER H. CUSTODIAN COMPLIANCE AND IMMUNITY REGARDING DIGITAL
ASSETS
Sec. 2001.231. CUSTODIAN COMPLIANCE AND IMMUNITY. (a) Not
later than 60 days after receipt of the information required under
Subchapter C, D, E, F, or G, a custodian shall comply with a request
under this chapter from a fiduciary or designated recipient to
disclose digital assets or terminate an account. If the custodian
fails to comply, the fiduciary or designated recipient may apply to
the court for an order directing compliance.
(b) An order under Subsection (a) directing compliance must
contain a finding that compliance is not in violation of 18 U.S.C.
Section 2702.
(c) A custodian may notify the user that a request for
disclosure or to terminate an account was made under this chapter.
(d) A custodian may deny a request under this chapter from a
fiduciary or designated recipient for disclosure of digital assets
or to terminate an account if the custodian is aware of any lawful
access to the account following the receipt of the request.
(e) This chapter does not limit a custodian's ability to
obtain or require a fiduciary or designated recipient requesting
disclosure or termination under this chapter to obtain a court
order that:
(1) specifies that an account belongs to the ward or
principal;
(2) specifies that there is sufficient consent from
the ward or principal to support the requested disclosure; and
(3) contains a finding required by a law other than
this chapter.
Sec. 2001.232. IMMUNITY FROM LIABILITY. A custodian and
the custodian's officers, employees, and agents are immune from
liability for an act or omission done in good faith in compliance
with this chapter.
SECTION 2. Section 752.051, Estates Code, is amended to
read as follows:
Sec. 752.051. FORM. The following form is known as a
"statutory durable power of attorney":
STATUTORY DURABLE POWER OF ATTORNEY
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING.
THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P,
TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE
POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS
FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO
DO SO.
You should select someone you trust to serve as your agent
(attorney in fact). Unless you specify otherwise, generally the
agent's (attorney in fact's) authority will continue until:
(1) you die or revoke the power of attorney;
(2) your agent (attorney in fact) resigns or is unable
to act for you; or
(3) a guardian is appointed for your estate.
I, __________ (insert your name and address), appoint
__________ (insert the name and address of the person appointed) as
my agent (attorney in fact) to act for me in any lawful way with
respect to all of the following powers that I have initialed below.
TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN
FRONT OF (O) [(N)] AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS
LISTED IN (A) THROUGH (N) [(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) Digital assets and the content of an electronic
communication;
____ (O) [(N)] ALL OF THE POWERS LISTED IN (A) THROUGH (N)
[(M)]. YOU DO NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER
POWER IF YOU INITIAL LINE (O) [(N)].
SPECIAL INSTRUCTIONS:
Special instructions applicable to gifts (initial in front of
the following sentence to have it apply):
____ I grant my agent (attorney in fact) the power to apply my
property to make gifts outright to or for the benefit of a person,
including by the exercise of a presently exercisable general power
of appointment held by me, except that the amount of a gift to an
individual may not exceed the amount of annual exclusions allowed
from the federal gift tax for the calendar year of the gift.
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
ALTERNATIVE NOT CHOSEN:
(A) This power of attorney is not affected by my subsequent
disability or incapacity.
(B) This power of attorney becomes effective upon my
disability or incapacity.
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
YOU CHOSE ALTERNATIVE (A).
If Alternative (B) is chosen and a definition of my
disability or incapacity is not contained in this power of
attorney, I shall be considered disabled or incapacitated for
purposes of this power of attorney if a physician certifies in
writing at a date later than the date this power of attorney is
executed that, based on the physician's medical examination of me,
I am mentally incapable of managing my financial affairs. I
authorize the physician who examines me for this purpose to
disclose my physical or mental condition to another person for
purposes of this power of attorney. A third party who accepts this
power of attorney is fully protected from any action taken under
this power of attorney that is based on the determination made by a
physician of my disability or incapacity.
I agree that any third party who receives a copy of this
document may act under it. Revocation of the durable power of
attorney is not effective as to a third party until the third party
receives actual notice of the revocation. I agree to indemnify the
third party for any claims that arise against the third party
because of reliance on this power of attorney.
If any agent named by me dies, becomes legally disabled,
resigns, or refuses to act, I name the following (each to act alone
and successively, in the order named) as successor(s) to that
agent: __________.
Signed this ______ day of __________, _____________
________________________________
(your signature)
State of _______________________
County of ______________________
This document was acknowledged before me on ____________(date) by
________________________
(name of principal)
_______________________________
(signature of notarial officer)
(Seal, if any, of notary) _______________________________________
(printed name)
My commission expires: ______________
IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)
Agent's Duties
When you accept the authority granted under this power of
attorney, you establish a "fiduciary" relationship with the
principal. This is a special legal relationship that imposes on you
legal duties that continue until you resign or the power of attorney
is terminated or revoked by the principal or by operation of law. A
fiduciary duty generally includes the duty to:
(1) act in good faith;
(2) do nothing beyond the authority granted in this
power of attorney;
(3) act loyally for the principal's benefit;
(4) avoid conflicts that would impair your ability to
act in the principal's best interest; and
(5) disclose your identity as an agent or attorney in
fact when you act for the principal by writing or printing the name
of the principal and signing your own name as "agent" or "attorney
in fact" in the following manner:
(Principal's Name) by (Your Signature) as Agent (or as
Attorney in Fact)
In addition, the Durable Power of Attorney Act (Subtitle P,
Title 2, Estates Code) requires you to:
(1) maintain records of each action taken or decision
made on behalf of the principal;
(2) maintain all records until delivered to the
principal, released by the principal, or discharged by a court; and
(3) if requested by the principal, provide an
accounting to the principal that, unless otherwise directed by the
principal or otherwise provided in the Special Instructions, must
include:
(A) the property belonging to the principal that
has come to your knowledge or into your possession;
(B) each action taken or decision made by you as
agent or attorney in fact;
(C) a complete account of receipts,
disbursements, and other actions of you as agent or attorney in fact
that includes the source and nature of each receipt, disbursement,
or action, with receipts of principal and income shown separately;
(D) a listing of all property over which you have
exercised control that includes an adequate description of each
asset and the asset's current value, if known to you;
(E) the cash balance on hand and the name and
location of the depository at which the cash balance is kept;
(F) each known liability;
(G) any other information and facts known to you
as necessary for a full and definite understanding of the exact
condition of the property belonging to the principal; and
(H) all documentation regarding the principal's
property.
Termination of Agent's Authority
You must stop acting on behalf of the principal if you learn
of any event that terminates this power of attorney or your
authority under this power of attorney. An event that terminates
this power of attorney or your authority to act under this power of
attorney includes:
(1) the principal's death;
(2) the principal's revocation of this power of
attorney or your authority;
(3) the occurrence of a termination event stated in
this power of attorney;
(4) if you are married to the principal, the
dissolution of your marriage by court decree of divorce or
annulment;
(5) the appointment and qualification of a permanent
guardian of the principal's estate; or
(6) if ordered by a court, the suspension of this power
of attorney on the appointment and qualification of a temporary
guardian until the date the term of the temporary guardian expires.
Liability of Agent
The authority granted to you under this power of attorney is
specified in the Durable Power of Attorney Act (Subtitle P, Title 2,
Estates Code). If you violate the Durable Power of Attorney Act or
act beyond the authority granted, you may be liable for any damages
caused by the violation or subject to prosecution for
misapplication of property by a fiduciary under Chapter 32 of the
Texas Penal Code.
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
RESPONSIBILITIES OF AN AGENT.
SECTION 3. Subchapter C, Chapter 752, Estates Code, is
amended by adding Section 752.1145 to read as follows:
Sec. 752.1145. DIGITAL ASSET TRANSACTIONS. (a) In this
section, "digital asset" has the meaning assigned by Section
2001.002.
(b) The language conferring authority with respect to
digital assets in a statutory durable power of attorney empowers
the attorney in fact or agent, without further reference to a
specific digital asset, to access digital assets as provided in
Chapter 2001.
SECTION 4. Section 752.115, Estates Code, is amended to
read as follows:
Sec. 752.115. EXISTING INTERESTS; FOREIGN INTERESTS. The
powers described by Sections 752.102-752.1145 [752.102-752.114]
may be exercised equally with respect to an interest the principal
has at the time the durable power of attorney is executed or
acquires later, whether or not:
(1) the property is located in this state; or
(2) the powers are exercised or the durable power of
attorney is executed in this state.
SECTION 5. Section 1151.101, Estates Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) Subject to Subsection (b), the guardian of the estate of
a ward is entitled to:
(1) possess and manage all property belonging to the
ward;
(2) collect all debts, rentals, or claims that are due
to the ward;
(3) enforce all obligations in favor of the ward;
[and]
(4) bring and defend suits by or against the ward; and
(5) access the ward's digital assets as provided by
Chapter 2001.
(c) In this section, "digital asset" has the meaning
assigned by Section 2001.002.
SECTION 6. Subchapter A, Chapter 113, Property Code, is
amended by adding Section 113.031 to read as follows:
Sec. 113.031. DIGITAL ASSETS. (a) In this section,
"digital asset" has the meaning assigned by Section 2001.002,
Estates Code.
(b) A trustee may access digital assets as provided by
Chapter 2001, Estates Code.
SECTION 7. Chapter 2001, Estates Code, as added by this Act,
applies to:
(1) a fiduciary acting under a will or power of
attorney executed before, on, or after the effective date of this
Act;
(2) a personal representative acting for a decedent
who died before, on, or after the effective date of this Act;
(3) a guardian appointed to act for a ward in a
guardianship proceeding commenced before, on, or after the
effective date of this Act; and
(4) a trustee acting under a trust created before, on,
or after the effective date of this Act.
SECTION 8. This Act takes effect September 1, 2017.