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Texas Senate Bill SB41

Texas 2017 - 85th Regular

Texas Senate Bill SB41 Compare Versions

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11 By: Zaffirini S.B. No. 41
2- (In the Senate - Filed November 14, 2016; January 24, 2017,
3- read first time and referred to Committee on State Affairs;
4- March 6, 2017, reported adversely, with favorable Committee
5- Substitute by the following vote: Yeas 9, Nays 0; March 6, 2017,
6- sent to printer.)
7-Click here to see the committee vote
8- COMMITTEE SUBSTITUTE FOR S.B. No. 41 By: Zaffirini
2+ (Thompson of Harris)
93
104
115 A BILL TO BE ENTITLED
126 AN ACT
137 relating to the demand for an accounting from an attorney in fact or
148 agent of a principal by certain persons.
159 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1610 SECTION 1. Section 751.104, Estates Code, is amended to
1711 read as follows:
1812 Sec. 751.104. ACCOUNTING. (a) The following persons
1913 [principal] may demand an accounting by the attorney in fact or
2014 agent:
21- (1) the principal;
22- (2) a guardian, spouse, parent, sibling, or adult
23- child of the principal;
24- (3) a person named as a successor attorney in fact or
25- agent in the durable power of attorney;
26- (4) an agent of the principal authorized to make
15+ (1) the principal; or
16+ (2) if the principal is unable to demand an accounting
17+ because of the principal's mental or physical condition:
18+ (A) a guardian or spouse of the principal;
19+ (B) a person named as a successor attorney in
20+ fact or agent in the durable power of attorney;
21+ (C) an agent of the principal authorized to make
2722 health care decisions on the principal's behalf by a medical power
28- of attorney; or
29- (5) an attorney who represents the principal.
23+ of attorney;
24+ (D) an attorney who represents the principal; or
25+ (E) any other family member of the principal who
26+ the court, for good cause shown, finds has standing to demand an
27+ accounting under this section.
3028 (b) Unless otherwise directed by the principal or other
3129 person demanding an accounting, an accounting under Subsection (a)
3230 must include:
3331 (1) the property belonging to the principal that has
3432 come to the attorney in fact's or agent's knowledge or into the
3533 attorney in fact's or agent's possession;
3634 (2) each action taken or decision made by the attorney
3735 in fact or agent;
3836 (3) a complete account of receipts, disbursements, and
3937 other actions of the attorney in fact or agent that includes the
4038 source and nature of each receipt, disbursement, or action, with
4139 receipts of principal and income shown separately;
4240 (4) a listing of all property over which the attorney
4341 in fact or agent has exercised control that includes:
4442 (A) an adequate description of each asset; and
4543 (B) the asset's current value, if the value is
4644 known to the attorney in fact or agent;
4745 (5) the cash balance on hand and the name and location
4846 of the depository at which the cash balance is kept;
4947 (6) each known liability; and
5048 (7) any other information and facts known to the
5149 attorney in fact or agent as necessary for a full and definite
5250 understanding of the exact condition of the property belonging to
5351 the principal.
5452 (c) Unless directed otherwise by the person demanding an
5553 accounting under this section [principal], the attorney in fact or
5654 agent shall also provide to the person [principal] all
5755 documentation regarding the principal's property.
5856 SECTION 2. Section 751.105, Estates Code, is amended to
5957 read as follows:
6058 Sec. 751.105. EFFECT OF FAILURE TO COMPLY; SUIT. If the
6159 attorney in fact or agent fails or refuses to inform the principal,
6260 provide documentation, or deliver an accounting to the principal or
6361 other person under Section 751.104 within 60 days of a demand under
6462 that section, or a longer or shorter period as demanded by the
6563 person [principal] or ordered by a court:
6664 (1)[,] the principal or other person may file suit
6765 to[:
6866 [(1)] compel the attorney in fact or agent to deliver
6967 the accounting or the assets; or
7068 (2) the principal may file suit to terminate the power
7169 of attorney.
7270 SECTION 3. Section 752.051, Estates Code, is amended to
7371 read as follows:
7472 Sec. 752.051. FORM. The following form is known as a
7573 "statutory durable power of attorney":
7674 STATUTORY DURABLE POWER OF ATTORNEY
77- NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND
78- SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT,
79- SUBTITLE P, TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT
80- THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES
81- NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE
82- DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU
83- LATER WISH TO DO SO.
75+ NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING.
76+ THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P,
77+ TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE
78+ POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
79+ AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS
80+ FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO
81+ DO SO.
8482 You should select someone you trust to serve as your agent
8583 (attorney in fact). Unless you specify otherwise, generally the
8684 agent's (attorney in fact's) authority will continue until:
8785 (1) you die or revoke the power of attorney;
8886 (2) your agent (attorney in fact) resigns or is unable
8987 to act for you; or
9088 (3) a guardian is appointed for your estate.
9189 I, __________ (insert your name and address), appoint
9290 __________ (insert the name and address of the person appointed) as
9391 my agent (attorney in fact) to act for me in any lawful way with
9492 respect to all of the following powers that I have initialed below.
9593 TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN
9694 FRONT OF (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS
9795 LISTED IN (A) THROUGH (M).
9896 TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
9997 POWER YOU ARE GRANTING.
10098 TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
10199 POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD.
102100 ____ (A) Real property transactions;
103101 ____ (B) Tangible personal property transactions;
104102 ____ (C) Stock and bond transactions;
105103 ____ (D) Commodity and option transactions;
106104 ____ (E) Banking and other financial institution
107105 transactions;
108106 ____ (F) Business operating transactions;
109107 ____ (G) Insurance and annuity transactions;
110108 ____ (H) Estate, trust, and other beneficiary transactions;
111109 ____ (I) Claims and litigation;
112110 ____ (J) Personal and family maintenance;
113111 ____ (K) Benefits from social security, Medicare, Medicaid,
114112 or other governmental programs or civil or military service;
115113 ____ (L) Retirement plan transactions;
116114 ____ (M) Tax matters;
117115 ____ (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU DO
118116 NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU
119117 INITIAL LINE (N).
120118 SPECIAL INSTRUCTIONS:
121119 Special instructions applicable to gifts (initial in front of
122120 the following sentence to have it apply):
123121 ____ I grant my agent (attorney in fact) the power to apply my
124122 property to make gifts outright to or for the benefit of a person,
125123 including by the exercise of a presently exercisable general power
126124 of appointment held by me, except that the amount of a gift to an
127125 individual may not exceed the amount of annual exclusions allowed
128126 from the federal gift tax for the calendar year of the gift.
129127 ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
130128 LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
131129 ________________________________________________________________
132130 ________________________________________________________________
133131 ________________________________________________________________
134132 ________________________________________________________________
135133 ________________________________________________________________
136134 ________________________________________________________________
137135 ________________________________________________________________
138136 ________________________________________________________________
139137 ________________________________________________________________
140138 UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
141139 EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
142140 CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
143141 ALTERNATIVE NOT CHOSEN:
144142 (A) This power of attorney is not affected by my subsequent
145143 disability or incapacity.
146144 (B) This power of attorney becomes effective upon my
147145 disability or incapacity.
148146 YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
149147 IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
150148 IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
151149 YOU CHOSE ALTERNATIVE (A).
152150 If Alternative (B) is chosen and a definition of my
153151 disability or incapacity is not contained in this power of
154152 attorney, I shall be considered disabled or incapacitated for
155153 purposes of this power of attorney if a physician certifies in
156154 writing at a date later than the date this power of attorney is
157155 executed that, based on the physician's medical examination of me,
158156 I am mentally incapable of managing my financial affairs. I
159157 authorize the physician who examines me for this purpose to
160158 disclose my physical or mental condition to another person for
161159 purposes of this power of attorney. A third party who accepts this
162160 power of attorney is fully protected from any action taken under
163161 this power of attorney that is based on the determination made by a
164162 physician of my disability or incapacity.
165163 I agree that any third party who receives a copy of this
166164 document may act under it. Revocation of the durable power of
167165 attorney is not effective as to a third party until the third party
168166 receives actual notice of the revocation. I agree to indemnify the
169167 third party for any claims that arise against the third party
170168 because of reliance on this power of attorney.
171169 If any agent named by me dies, becomes legally disabled,
172170 resigns, or refuses to act, I name the following (each to act alone
173171 and successively, in the order named) as successor(s) to that
174172 agent: __________.
175173 Signed this ______ day of __________, _____________
176174 ___________________________
177175 (your signature)
178176 State of _______________________
179177 County of ______________________
180178 This document was acknowledged before me on ____________(date) by
181179 ________________________
182180 (name of principal)
183181 ______________________________
184182 (signature of notarial officer)
185183 (Seal, if any, of notary) ________________________________________
186184 (printed name)
187185 My commission expires: ______________
188186 IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)
189187 Agent's Duties
190188 When you accept the authority granted under this power of
191189 attorney, you establish a "fiduciary" relationship with the
192- principal. This is a special legal relationship that imposes on
193- you legal duties that continue until you resign or the power of
194- attorney is terminated or revoked by the principal or by operation
195- of law. A fiduciary duty generally includes the duty to:
190+ principal. This is a special legal relationship that imposes on you
191+ legal duties that continue until you resign or the power of attorney
192+ is terminated or revoked by the principal or by operation of law. A
193+ fiduciary duty generally includes the duty to:
196194 (1) act in good faith;
197195 (2) do nothing beyond the authority granted in this
198196 power of attorney;
199197 (3) act loyally for the principal's benefit;
200198 (4) avoid conflicts that would impair your ability to
201199 act in the principal's best interest; and
202200 (5) disclose your identity as an agent or attorney in
203201 fact when you act for the principal by writing or printing the name
204202 of the principal and signing your own name as "agent" or "attorney
205203 in fact" in the following manner:
206204 (Principal's Name) by (Your Signature) as Agent (or as
207205 Attorney in Fact)
208206 In addition, the Durable Power of Attorney Act (Subtitle P,
209207 Title 2, Estates Code) requires you to:
210208 (1) maintain records of each action taken or decision
211209 made on behalf of the principal;
212210 (2) maintain all records until delivered to the
213211 principal, released by the principal, or discharged by a court; and
214- (3) if requested by the principal or a family member of
215- the principal, the principal's agent under a medical power of
216- attorney, or other legal representative of the principal, provide
217- an accounting to the principal or other person that, unless
218- otherwise directed by the principal or other person or otherwise
219- provided in the Special Instructions, must include:
212+ (3) if requested by the principal or, if the principal
213+ is unable to demand the accounting because of the principal's
214+ mental or physical condition, the principal's spouse, agent under a
215+ medical power of attorney, legal representative, or, for good cause
216+ shown to the court, other family member, provide an accounting to
217+ the principal or other person that, unless otherwise directed by
218+ the principal or other person or otherwise provided in the Special
219+ Instructions, must include:
220220 (A) the property belonging to the principal that
221221 has come to your knowledge or into your possession;
222222 (B) each action taken or decision made by you as
223223 agent or attorney in fact;
224224 (C) a complete account of receipts,
225225 disbursements, and other actions of you as agent or attorney in fact
226226 that includes the source and nature of each receipt, disbursement,
227227 or action, with receipts of principal and income shown separately;
228228 (D) a listing of all property over which you have
229229 exercised control that includes an adequate description of each
230230 asset and the asset's current value, if known to you;
231231 (E) the cash balance on hand and the name and
232232 location of the depository at which the cash balance is kept;
233233 (F) each known liability;
234234 (G) any other information and facts known to you
235235 as necessary for a full and definite understanding of the exact
236236 condition of the property belonging to the principal; and
237237 (H) all documentation regarding the principal's
238238 property.
239239 Termination of Agent's Authority
240240 You must stop acting on behalf of the principal if you learn
241241 of any event that terminates this power of attorney or your
242242 authority under this power of attorney. An event that terminates
243243 this power of attorney or your authority to act under this power of
244244 attorney includes:
245245 (1) the principal's death;
246246 (2) the principal's revocation of this power of
247247 attorney or your authority;
248248 (3) the occurrence of a termination event stated in
249249 this power of attorney;
250250 (4) if you are married to the principal, the
251251 dissolution of your marriage by court decree of divorce or
252252 annulment;
253253 (5) the appointment and qualification of a permanent
254254 guardian of the principal's estate; or
255255 (6) if ordered by a court, the suspension of this power
256256 of attorney on the appointment and qualification of a temporary
257257 guardian until the date the term of the temporary guardian expires.
258258 Liability of Agent
259259 The authority granted to you under this power of attorney is
260260 specified in the Durable Power of Attorney Act (Subtitle P, Title 2,
261261 Estates Code). If you violate the Durable Power of Attorney Act or
262262 act beyond the authority granted, you may be liable for any damages
263263 caused by the violation or subject to prosecution for
264264 misapplication of property by a fiduciary under Chapter 32 of the
265265 Texas Penal Code.
266266 THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
267267 THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
268268 RESPONSIBILITIES OF AN AGENT.
269269 SECTION 4. (a) Sections 751.104 and 751.105, Estates Code,
270270 as amended by this Act, apply to a durable power of attorney,
271271 including a statutory durable power of attorney, executed before,
272272 on, or after the effective date of this Act.
273273 (b) Section 752.051, Estates Code, as amended by this Act,
274274 applies to a statutory durable power of attorney executed on or
275275 after the effective date of this Act. A statutory durable power of
276276 attorney executed before the effective date of this Act is governed
277277 by the law as it existed on the date the statutory durable power of
278278 attorney was executed, and the former law is continued in effect for
279279 that purpose.
280280 SECTION 5. This Act takes effect immediately if it receives
281281 a vote of two-thirds of all the members elected to each house, as
282282 provided by Section 39, Article III, Texas Constitution. If this
283283 Act does not receive the vote necessary for immediate effect, this
284284 Act takes effect September 1, 2017.
285- * * * * *