| |
| |
| |
|
|
AN ACT
|
|
|
relating to statutory durable powers of attorney. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Section 752.051, Estates Code, as effective |
|
|
January 1, 2014, 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 |
|
|
[except for a power that I have crossed out below.
|
|
|
[TO WITHHOLD A POWER, YOU MUST 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). |
|
|
[IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL
|
|
|
BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY
|
|
|
AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO
|
|
|
PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I
|
|
|
WERE PERSONALLY PRESENT.] |
|
|
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 2. Section 752.002, Estates Code, as effective |
|
|
January 1, 2014, is amended to read as follows: |
|
|
Sec. 752.002. VALIDITY NOT AFFECTED. A power of attorney is |
|
|
valid with respect to meeting the requirements for a statutory |
|
|
durable power of attorney regardless of the fact that: |
|
|
(1) one or more of the categories of optional powers |
|
|
listed in the form prescribed by Section 752.051 are not initialed |
|
|
[struck]; or |
|
|
(2) the form includes specific limitations on, or |
|
|
additions to, the powers of the attorney in fact or agent. |
|
|
SECTION 3. The changes in law made by this Act apply only to |
|
|
a power of attorney executed on or after the effective date of this |
|
|
Act. A power of attorney executed before the effective date of this |
|
|
Act is governed by the law in effect on the date the power of |
|
|
attorney was executed, and that law is continued in effect for that |
|
|
purpose. |
|
|
SECTION 4. This Act takes effect January 1, 2014. |
| |
| |
| |
______________________________ |
______________________________ |
| |
President of the Senate |
Speaker of the House |
| |
| |
|
|
I certify that H.B. No. 2918 was passed by the House on May 2, |
|
|
2013, by the following vote: Yeas 146, Nays 0, 2 present, not |
|
|
voting. |
|
|
|
|
|
______________________________ |
|
|
Chief Clerk of the House |
| |
| |
|
|
I certify that H.B. No. 2918 was passed by the Senate on May |
|
|
22, 2013, by the following vote: Yeas 31, Nays 0. |
|
|
|
|
|
______________________________ |
|
|
Secretary of the Senate |
|
|
APPROVED: _____________________ |
|
|
Date |
|
|
|
|
|
_____________________ |
|
|
Governor |