By: Zaffirini S.B. No. 41
(Thompson of Harris)
A BILL TO BE ENTITLED
AN ACT
relating to the demand for an accounting from an attorney in fact or
agent of a principal by certain persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 751.104, Estates Code, is amended to
read as follows:
Sec. 751.104. ACCOUNTING. (a) The following persons
[principal] may demand an accounting by the attorney in fact or
agent:
(1) the principal; or
(2) if the principal is unable to demand an accounting
because of the principal's mental or physical condition:
(A) a guardian or spouse of the principal;
(B) a person named as a successor attorney in
fact or agent in the durable power of attorney;
(C) an agent of the principal authorized to make
health care decisions on the principal's behalf by a medical power
of attorney;
(D) an attorney who represents the principal; or
(E) any other family member of the principal who
the court, for good cause shown, finds has standing to demand an
accounting under this section.
(b) Unless otherwise directed by the principal or other
person demanding an accounting, 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 person demanding an
accounting under this section [principal], the attorney in fact or
agent shall also provide to the person [principal] all
documentation regarding the principal's property.
SECTION 2. Section 751.105, Estates Code, is amended to
read as follows:
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 to the principal or
other person under Section 751.104 within 60 days of a demand under
that section, or a longer or shorter period as demanded by the
person [principal] or ordered by a court:
(1)[,] the principal or other person may file suit
to[:
[(1)] compel the attorney in fact or agent to deliver
the accounting or the assets; or
(2) the principal may file suit to terminate the power
of attorney.
SECTION 3. 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 (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS
LISTED IN (A) THROUGH (M).
TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
POWER YOU ARE GRANTING.
TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD.
____ (A) Real property transactions;
____ (B) Tangible personal property transactions;
____ (C) Stock and bond transactions;
____ (D) Commodity and option transactions;
____ (E) Banking and other financial institution
transactions;
____ (F) Business operating transactions;
____ (G) Insurance and annuity transactions;
____ (H) Estate, trust, and other beneficiary transactions;
____ (I) Claims and litigation;
____ (J) Personal and family maintenance;
____ (K) Benefits from social security, Medicare, Medicaid,
or other governmental programs or civil or military service;
____ (L) Retirement plan transactions;
____ (M) Tax matters;
____ (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU DO
NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU
INITIAL LINE (N).
SPECIAL INSTRUCTIONS:
Special instructions applicable to gifts (initial in front of
the following sentence to have it apply):
____ I grant my agent (attorney in fact) the power to apply my
property to make gifts outright to or for the benefit of a person,
including by the exercise of a presently exercisable general power
of appointment held by me, except that the amount of a gift to an
individual may not exceed the amount of annual exclusions allowed
from the federal gift tax for the calendar year of the gift.
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
________________________________________________________________
________________________________________________________________
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________________________________________________________________
________________________________________________________________
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________________________________________________________________
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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 or, if the principal
is unable to demand the accounting because of the principal's
mental or physical condition, the principal's spouse, agent under a
medical power of attorney, legal representative, or, for good cause
shown to the court, other family member, provide an accounting to
the principal or other person that, unless otherwise directed by
the principal or other person 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 4. (a) Sections 751.104 and 751.105, Estates Code,
as amended by this Act, apply to a durable power of attorney,
including a statutory durable power of attorney, executed before,
on, or after the effective date of this Act.
(b) Section 752.051, Estates Code, as amended by this Act,
applies to a statutory durable power of attorney executed on or
after the effective date of this Act. A statutory durable power of
attorney executed before the effective date of this Act is governed
by the law as it existed on the date the statutory durable power of
attorney was executed, and the former law is continued in effect for
that purpose.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2017.