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A BILL TO BE ENTITLED
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AN ACT
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relating to the demand for an accounting from an attorney in fact or |
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agent of a principal by certain persons. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 751.104, Estates Code, is amended to |
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read as follows: |
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Sec. 751.104. ACCOUNTING. (a) The following persons |
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[principal] may demand an accounting by the attorney in fact or |
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agent: |
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(1) the principal; |
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(2) a guardian, spouse, parent, sibling, or adult |
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child of the principal; |
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(3) a person named as a successor attorney in fact or |
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agent in the durable power of attorney; |
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(4) an agent of the principal authorized to make |
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health care decisions on the principal's behalf by a medical power |
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of attorney; or |
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(5) an attorney who represents the principal. |
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(b) Unless otherwise directed by the principal or other |
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person demanding an accounting, an accounting under Subsection (a) |
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must include: |
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(1) the property belonging to the principal that has |
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come to the attorney in fact's or agent's knowledge or into the |
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attorney in fact's or agent's possession; |
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(2) each action taken or decision made by the attorney |
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in fact or agent; |
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(3) a complete account of receipts, disbursements, and |
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other actions of the attorney in fact or agent that includes the |
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source and nature of each receipt, disbursement, or action, with |
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receipts of principal and income shown separately; |
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(4) a listing of all property over which the attorney |
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in fact or agent has exercised control that includes: |
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(A) an adequate description of each asset; and |
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(B) the asset's current value, if the value is |
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known to the attorney in fact or agent; |
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(5) the cash balance on hand and the name and location |
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of the depository at which the cash balance is kept; |
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(6) each known liability; and |
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(7) any other information and facts known to the |
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attorney in fact or agent as necessary for a full and definite |
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understanding of the exact condition of the property belonging to |
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the principal. |
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(c) Unless directed otherwise by the person demanding an |
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accounting under this section [principal], the attorney in fact or |
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agent shall also provide to the person [principal] all |
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documentation regarding the principal's property. |
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SECTION 2. Section 751.105, Estates Code, is amended to |
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read as follows: |
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Sec. 751.105. EFFECT OF FAILURE TO COMPLY; SUIT. If the |
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attorney in fact or agent fails or refuses to inform the principal, |
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provide documentation, or deliver an accounting to the principal or |
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other person under Section 751.104 within 60 days of a demand under |
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that section, or a longer or shorter period as demanded by the |
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person [principal] or ordered by a court: |
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(1)[,] the principal or other person may file suit |
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to[:
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[(1)] compel the attorney in fact or agent to deliver |
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the accounting or the assets; or |
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(2) the principal may file suit to terminate the power |
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of attorney. |
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SECTION 3. Section 752.051, Estates Code, is amended to |
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read as follows: |
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Sec. 752.051. FORM. The following form is known as a |
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"statutory durable power of attorney": |
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STATUTORY DURABLE POWER OF ATTORNEY |
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NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND |
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SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, |
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SUBTITLE P, TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT |
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THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES |
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NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE |
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DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU |
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LATER WISH TO DO SO. |
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You should select someone you trust to serve as your agent |
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(attorney in fact). Unless you specify otherwise, generally the |
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agent's (attorney in fact's) authority will continue until: |
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(1) you die or revoke the power of attorney; |
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(2) your agent (attorney in fact) resigns or is unable |
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to act for you; or |
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(3) a guardian is appointed for your estate. |
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I, __________ (insert your name and address), appoint |
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__________ (insert the name and address of the person appointed) as |
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my agent (attorney in fact) to act for me in any lawful way with |
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respect to all of the following powers that I have initialed below. |
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TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN |
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FRONT OF (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS |
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LISTED IN (A) THROUGH (M). |
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TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE |
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POWER YOU ARE GRANTING. |
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TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE |
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POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD. |
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____ (A) Real property transactions; |
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____ (B) Tangible personal property transactions; |
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____ (C) Stock and bond transactions; |
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____ (D) Commodity and option transactions; |
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____ (E) Banking and other financial institution |
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transactions; |
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____ (F) Business operating transactions; |
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____ (G) Insurance and annuity transactions; |
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____ (H) Estate, trust, and other beneficiary transactions; |
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____ (I) Claims and litigation; |
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____ (J) Personal and family maintenance; |
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____ (K) Benefits from social security, Medicare, Medicaid, |
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or other governmental programs or civil or military service; |
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____ (L) Retirement plan transactions; |
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____ (M) Tax matters; |
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____ (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU DO |
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NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU |
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INITIAL LINE (N). |
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SPECIAL INSTRUCTIONS: |
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Special instructions applicable to gifts (initial in front of |
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the following sentence to have it apply): |
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____ I grant my agent (attorney in fact) the power to apply my |
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property to make gifts outright to or for the benefit of a person, |
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including by the exercise of a presently exercisable general power |
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of appointment held by me, except that the amount of a gift to an |
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individual may not exceed the amount of annual exclusions allowed |
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from the federal gift tax for the calendar year of the gift. |
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ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS |
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LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT. |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS |
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EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED. |
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CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE |
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ALTERNATIVE NOT CHOSEN: |
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(A) This power of attorney is not affected by my subsequent |
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disability or incapacity. |
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(B) This power of attorney becomes effective upon my |
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disability or incapacity. |
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YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY |
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IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED. |
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IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT |
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YOU CHOSE ALTERNATIVE (A). |
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If Alternative (B) is chosen and a definition of my |
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disability or incapacity is not contained in this power of |
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attorney, I shall be considered disabled or incapacitated for |
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purposes of this power of attorney if a physician certifies in |
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writing at a date later than the date this power of attorney is |
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executed that, based on the physician's medical examination of me, |
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I am mentally incapable of managing my financial affairs. I |
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authorize the physician who examines me for this purpose to |
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disclose my physical or mental condition to another person for |
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purposes of this power of attorney. A third party who accepts this |
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power of attorney is fully protected from any action taken under |
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this power of attorney that is based on the determination made by a |
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physician of my disability or incapacity. |
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I agree that any third party who receives a copy of this |
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document may act under it. Revocation of the durable power of |
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attorney is not effective as to a third party until the third party |
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receives actual notice of the revocation. I agree to indemnify the |
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third party for any claims that arise against the third party |
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because of reliance on this power of attorney. |
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If any agent named by me dies, becomes legally disabled, |
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resigns, or refuses to act, I name the following (each to act alone |
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and successively, in the order named) as successor(s) to that |
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agent: __________. |
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Signed this ______ day of __________, _____________ |
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___________________________ |
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(your signature) |
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State of _______________________ |
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County of ______________________ |
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This document was acknowledged before me on ____________(date) by |
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________________________ |
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(name of principal) |
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______________________________ |
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(signature of notarial officer) |
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(Seal, if any, of notary) ________________________________________ |
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(printed name) |
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My commission expires: ______________ |
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IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT) |
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Agent's Duties |
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When you accept the authority granted under this power of |
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attorney, you establish a "fiduciary" relationship with the |
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principal. This is a special legal relationship that imposes on |
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you legal duties that continue until you resign or the power of |
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attorney is terminated or revoked by the principal or by operation |
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of law. A fiduciary duty generally includes the duty to: |
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(1) act in good faith; |
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(2) do nothing beyond the authority granted in this |
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power of attorney; |
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(3) act loyally for the principal's benefit; |
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(4) avoid conflicts that would impair your ability to |
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act in the principal's best interest; and |
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(5) disclose your identity as an agent or attorney in |
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fact when you act for the principal by writing or printing the name |
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of the principal and signing your own name as "agent" or "attorney |
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in fact" in the following manner: |
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(Principal's Name) by (Your Signature) as Agent (or as |
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Attorney in Fact) |
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In addition, the Durable Power of Attorney Act (Subtitle P, |
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Title 2, Estates Code) requires you to: |
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(1) maintain records of each action taken or decision |
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made on behalf of the principal; |
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(2) maintain all records until delivered to the |
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principal, released by the principal, or discharged by a court; and |
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(3) if requested by the principal or a family member of |
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the principal, the principal's agent under a medical power of |
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attorney, or other legal representative of the principal, provide |
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an accounting to the principal or other person that, unless |
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otherwise directed by the principal or other person or otherwise |
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provided in the Special Instructions, must include: |
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(A) the property belonging to the principal that |
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has come to your knowledge or into your possession; |
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(B) each action taken or decision made by you as |
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agent or attorney in fact; |
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(C) a complete account of receipts, |
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disbursements, and other actions of you as agent or attorney in fact |
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that includes the source and nature of each receipt, disbursement, |
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or action, with receipts of principal and income shown separately; |
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(D) a listing of all property over which you have |
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exercised control that includes an adequate description of each |
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asset and the asset's current value, if known to you; |
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(E) the cash balance on hand and the name and |
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location of the depository at which the cash balance is kept; |
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(F) each known liability; |
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(G) any other information and facts known to you |
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as necessary for a full and definite understanding of the exact |
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condition of the property belonging to the principal; and |
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(H) all documentation regarding the principal's |
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property. |
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Termination of Agent's Authority |
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You must stop acting on behalf of the principal if you learn |
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of any event that terminates this power of attorney or your |
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authority under this power of attorney. An event that terminates |
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this power of attorney or your authority to act under this power of |
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attorney includes: |
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(1) the principal's death; |
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(2) the principal's revocation of this power of |
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attorney or your authority; |
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(3) the occurrence of a termination event stated in |
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this power of attorney; |
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(4) if you are married to the principal, the |
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dissolution of your marriage by court decree of divorce or |
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annulment; |
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(5) the appointment and qualification of a permanent |
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guardian of the principal's estate; or |
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(6) if ordered by a court, the suspension of this power |
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of attorney on the appointment and qualification of a temporary |
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guardian until the date the term of the temporary guardian expires. |
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Liability of Agent |
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The authority granted to you under this power of attorney is |
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specified in the Durable Power of Attorney Act (Subtitle P, Title 2, |
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Estates Code). If you violate the Durable Power of Attorney Act or |
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act beyond the authority granted, you may be liable for any damages |
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caused by the violation or subject to prosecution for |
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misapplication of property by a fiduciary under Chapter 32 of the |
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Texas Penal Code. |
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THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER |
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THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL |
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RESPONSIBILITIES OF AN AGENT. |
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SECTION 4. (a) Sections 751.104 and 751.105, Estates Code, |
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as amended by this Act, apply to a durable power of attorney, |
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including a statutory durable power of attorney, executed before, |
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on, or after the effective date of this Act. |
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(b) Section 752.051, Estates Code, as amended by this Act, |
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applies to a statutory durable power of attorney executed on or |
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after the effective date of this Act. A statutory durable power of |
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attorney executed before the effective date of this Act is governed |
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by the law as it existed on the date the statutory durable power of |
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attorney was executed, and the former law is continued in effect for |
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that purpose. |
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SECTION 5. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2017. |
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