Bill Text: TX HB1974 | 2017-2018 | 85th Legislature | Enrolled
Bill Title: Relating to durable powers of attorney.
Spectrum: Bipartisan Bill
Status: (Passed) 2017-06-15 - Effective on 9/1/17 [HB1974 Detail]
Download: Texas-2017-HB1974-Enrolled.html
H.B. No. 1974 |
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relating to durable powers of attorney. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subchapter A, Chapter 751, Estates Code, is | ||
amended by adding Section 751.0015 to read as follows: | ||
Sec. 751.0015. APPLICABILITY OF SUBTITLE. This subtitle | ||
applies to all durable powers of attorney except: | ||
(1) a power of attorney to the extent it is coupled | ||
with an interest in the subject of the power, including a power of | ||
attorney given to or for the benefit of a creditor in connection | ||
with a credit transaction; | ||
(2) a medical power of attorney, as defined by Section | ||
166.002, Health and Safety Code; | ||
(3) a proxy or other delegation to exercise voting | ||
rights or management rights with respect to an entity; or | ||
(4) a power of attorney created on a form prescribed by | ||
a government or governmental subdivision, agency, or | ||
instrumentality for a governmental purpose. | ||
SECTION 2. Subchapter A, Chapter 751, Estates Code, is | ||
amended by amending Sections 751.002, 751.003, and 751.006 and | ||
adding Sections 751.00201, 751.0021, 751.0022, 751.0023, 751.0024, | ||
and 751.007 to read as follows: | ||
Sec. 751.002. DEFINITIONS [ |
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(1) "Actual knowledge" means the knowledge of a person | ||
without that person making any due inquiry, and without any imputed | ||
knowledge, except as expressly set forth in Section 751.211(c). | ||
(2) "Affiliate" means a business entity that directly | ||
or indirectly controls, is controlled by, or is under common | ||
control with another business entity. | ||
(3) "Agent" includes: | ||
(A) an attorney in fact; and | ||
(B) a co-agent, successor agent, or successor | ||
co-agent. | ||
(4) "Durable power of attorney" means a writing or | ||
other record that complies with the requirements of Section | ||
751.0021(a) or is described by Section 751.0021(b). | ||
(5) "Principal" means an adult person who signs or | ||
directs the signing of the person's name on a power of attorney that | ||
designates an agent to act on the person's behalf. | ||
(6) "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. | ||
Sec. 751.00201. MEANING OF DISABLED OR INCAPACITATED FOR | ||
PURPOSES OF DURABLE POWER OF ATTORNEY. Unless otherwise defined by | ||
a durable power of attorney, a person is considered disabled or | ||
incapacitated for purposes of the durable power of attorney if a | ||
physician certifies in writing at a date later than the date the | ||
durable power of attorney is executed that, based on the | ||
physician's medical examination of the person, the person is | ||
determined to be mentally incapable of managing the person's | ||
financial affairs. | ||
Sec. 751.0021. REQUIREMENTS OF DURABLE POWER OF ATTORNEY. | ||
(a) An instrument is a durable power of attorney for purposes of | ||
this subtitle if the [ |
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instrument [ |
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(1) is a writing or other record that designates | ||
another person as [ |
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to that agent to act in the place of the principal, regardless of | ||
whether the term "power of attorney" is used; | ||
(2) is signed by an adult principal or in the adult | ||
principal's conscious presence by another adult directed by the | ||
principal to sign the principal's name on the instrument; | ||
(3) contains: | ||
(A) the words: | ||
(i) "This power of attorney is not affected | ||
by subsequent disability or incapacity of the principal"; or | ||
(ii) "This power of attorney becomes | ||
effective on the disability or incapacity of the principal"; or | ||
(B) words similar to those of Paragraph (A) that | ||
clearly indicate [ |
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conferred on the [ |
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notwithstanding the principal's subsequent disability or | ||
incapacity; and | ||
(4) is acknowledged by the principal or another adult | ||
directed by the principal as authorized by Subdivision (2) before | ||
an officer authorized under the laws of this state or another state | ||
to: | ||
(A) take acknowledgments to deeds of conveyance; | ||
and | ||
(B) administer oaths. | ||
(b) If the law of a jurisdiction other than this state | ||
determines the meaning and effect of a writing or other record that | ||
grants authority to an agent to act in the place of the principal, | ||
regardless of whether the term "power of attorney" is used, and that | ||
law provides that the authority conferred on the agent is | ||
exercisable notwithstanding the principal's subsequent disability | ||
or incapacity, the writing or other record is considered a durable | ||
power of attorney under this subtitle. | ||
Sec. 751.0022. PRESUMPTION OF GENUINE SIGNATURE. A | ||
signature on a durable power of attorney that purports to be the | ||
signature of the principal or of another adult directed by the | ||
principal as authorized by Section 751.0021(a)(2) is presumed to be | ||
genuine, and the durable power of attorney is presumed to have been | ||
executed under Section 751.0021(a) if the officer taking the | ||
acknowledgment has complied with the requirements of Section | ||
121.004(b), Civil Practice and Remedies Code. | ||
Sec. 751.0023. VALIDITY OF POWER OF ATTORNEY. (a) A | ||
durable power of attorney executed in this state is valid if the | ||
execution of the instrument complies with Section 751.0021(a). | ||
(b) A durable power of attorney executed in a jurisdiction | ||
other than this state is valid in this state if, when executed, the | ||
execution of the durable power of attorney complied with: | ||
(1) the law of the jurisdiction that determines the | ||
meaning and effect of the durable power of attorney as provided by | ||
Section 751.0024; or | ||
(2) the requirements for a military power of attorney | ||
as provided by 10 U.S.C. Section 1044b. | ||
(c) Except as otherwise provided by statute other than this | ||
subtitle or by the durable power of attorney, a photocopy or | ||
electronically transmitted copy of an original durable power of | ||
attorney has the same effect as the original instrument and may be | ||
relied on, without liability, by a person who is asked to accept the | ||
durable power of attorney to the same extent as the original. | ||
Sec. 751.0024. MEANING AND EFFECT OF DURABLE POWER OF | ||
ATTORNEY. The meaning and effect of a durable power of attorney is | ||
determined by the law of the jurisdiction indicated in the durable | ||
power of attorney and, in the absence of an indication of | ||
jurisdiction, by: | ||
(1) the law of the jurisdiction of the principal's | ||
domicile, if the principal's domicile is indicated in the power of | ||
attorney; or | ||
(2) the law of the jurisdiction in which the durable | ||
power of attorney was executed, if the principal's domicile is not | ||
indicated in the power of attorney. | ||
Sec. 751.003. UNIFORMITY OF APPLICATION AND CONSTRUCTION. | ||
This subtitle shall be applied and construed to effect the general | ||
purpose of this subtitle, which is to make uniform to the fullest | ||
extent possible the law with respect to the subject of this subtitle | ||
among states enacting these provisions. | ||
Sec. 751.006. REMEDIES UNDER OTHER LAW [ |
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The remedies [ |
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exclusive and do not abrogate any right or remedy under any law of | ||
this state other than this chapter [ |
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Sec. 751.007. CONFLICT WITH OR EFFECT ON OTHER LAW. This | ||
subtitle does not: | ||
(1) supersede any other law applicable to financial | ||
institutions or other entities, and to the extent of any conflict | ||
between this subtitle and another law applicable to an entity, the | ||
other law controls; or | ||
(2) have the effect of validating a conveyance of an | ||
interest in real property executed by an agent under a durable power | ||
of attorney if the conveyance is determined under a statute or | ||
common law to be void but not voidable. | ||
SECTION 3. Chapter 751, Estates Code, is amended by adding | ||
Subchapters A-1 and A-2 to read as follows: | ||
SUBCHAPTER A-1. APPOINTMENT OF AGENTS | ||
Sec. 751.021. CO-AGENTS. A principal may designate in a | ||
durable power of attorney two or more persons to act as co-agents. | ||
Unless the durable power of attorney otherwise provides, each | ||
co-agent may exercise authority independently of the other | ||
co-agent. | ||
Sec. 751.022. ACCEPTANCE OF APPOINTMENT AS AGENT. Except | ||
as otherwise provided in the durable power of attorney, a person | ||
accepts appointment as an agent under a durable power of attorney by | ||
exercising authority or performing duties as an agent or by any | ||
other assertion or conduct indicating acceptance of the | ||
appointment. | ||
Sec. 751.023. SUCCESSOR AGENTS. (a) A principal may | ||
designate in a durable power of attorney one or more successor | ||
agents to act if an agent resigns, dies, or becomes incapacitated, | ||
is not qualified to serve, or declines to serve. | ||
(b) A principal may grant authority to designate one or more | ||
successor agents to an agent or other person designated by name, | ||
office, or function. | ||
(c) Unless the durable power of attorney otherwise | ||
provides, a successor agent: | ||
(1) has the same authority as the authority granted to | ||
the predecessor agent; and | ||
(2) is not considered an agent under this subtitle and | ||
may not act until all predecessor agents, including co-agents, to | ||
the successor agent have resigned, died, or become incapacitated, | ||
are not qualified to serve, or have declined to serve. | ||
Sec. 751.024. REIMBURSEMENT AND COMPENSATION OF AGENT. | ||
Unless the durable power of attorney otherwise provides, an agent | ||
is entitled to: | ||
(1) reimbursement of reasonable expenses incurred on | ||
the principal's behalf; and | ||
(2) compensation that is reasonable under the | ||
circumstances. | ||
SUBCHAPTER A-2. AUTHORITY OF AGENT UNDER DURABLE POWER OF ATTORNEY | ||
Sec. 751.031. GRANTS OF AUTHORITY IN GENERAL AND CERTAIN | ||
LIMITATIONS. (a) Subject to Subsections (b), (c), and (d) and | ||
Section 751.032, if a durable power of attorney grants to an agent | ||
the authority to perform all acts that the principal could perform, | ||
the agent has the general authority conferred by Subchapter C, | ||
Chapter 752. | ||
(b) An agent may take the following actions on the | ||
principal's behalf or with respect to the principal's property only | ||
if the durable power of attorney designating the agent expressly | ||
grants the agent the authority and the exercise of the authority is | ||
not otherwise prohibited by another agreement or instrument to | ||
which the authority or property is subject: | ||
(1) create, amend, revoke, or terminate an inter vivos | ||
trust; | ||
(2) make a gift; | ||
(3) create or change rights of survivorship; | ||
(4) create or change a beneficiary designation; or | ||
(5) delegate authority granted under the power of | ||
attorney. | ||
(c) Notwithstanding a grant of authority to perform an act | ||
described by Subsection (b), unless the durable power of attorney | ||
otherwise provides, an agent who is not an ancestor, spouse, or | ||
descendant of the principal may not exercise authority under the | ||
power of attorney to create in the agent, or in an individual to | ||
whom the agent owes a legal obligation of support, an interest in | ||
the principal's property, whether by gift, right of survivorship, | ||
beneficiary designation, disclaimer, or otherwise. | ||
(d) Subject to Subsections (b) and (c) and Section 751.032, | ||
if the subjects over which authority is granted in a durable power | ||
of attorney are similar or overlap, the broadest authority | ||
controls. | ||
(e) Authority granted in a durable power of attorney is | ||
exercisable with respect to property that the principal has when | ||
the power of attorney is executed or acquires later, regardless of | ||
whether: | ||
(1) the property is located in this state; and | ||
(2) the authority is exercised in this state or the | ||
power of attorney is executed in this state. | ||
Sec. 751.032. GIFT AUTHORITY. (a) In this section, a gift | ||
for the benefit of a person includes a gift to: | ||
(1) a trust; | ||
(2) an account under the Texas Uniform Transfers to | ||
Minors Act (Chapter 141, Property Code) or a similar law of another | ||
state; and | ||
(3) a qualified tuition program of any state that | ||
meets the requirements of Section 529, Internal Revenue Code of | ||
1986. | ||
(b) Unless the durable power of attorney otherwise | ||
provides, a grant of authority to make a gift is subject to the | ||
limitations prescribed by this section. | ||
(c) Language in a durable power of attorney granting general | ||
authority with respect to gifts authorizes the agent to only: | ||
(1) make outright to, or for the benefit of, a person a | ||
gift of any of the principal's property, including by the exercise | ||
of a presently exercisable general power of appointment held by the | ||
principal, in an amount per donee not to exceed: | ||
(A) the annual dollar limits of the federal gift | ||
tax exclusion under Section 2503(b), Internal Revenue Code of 1986, | ||
regardless of whether the federal gift tax exclusion applies to the | ||
gift; or | ||
(B) if the principal's spouse agrees to consent | ||
to a split gift as provided by Section 2513, Internal Revenue Code | ||
of 1986, twice the annual federal gift tax exclusion limit; and | ||
(2) consent, as provided by Section 2513, Internal | ||
Revenue Code of 1986, to the splitting of a gift made by the | ||
principal's spouse in an amount per donee not to exceed the | ||
aggregate annual federal gift tax exclusions for both spouses. | ||
(d) An agent may make a gift of the principal's property | ||
only as the agent determines is consistent with the principal's | ||
objectives if the agent actually knows those objectives. If the | ||
agent does not know the principal's objectives, the agent may make a | ||
gift of the principal's property only as the agent determines is | ||
consistent with the principal's best interest based on all relevant | ||
factors, including the factors listed in Section 751.122 and the | ||
principal's personal history of making or joining in making gifts. | ||
Sec. 751.033. AUTHORITY TO CREATE OR CHANGE CERTAIN | ||
BENEFICIARY DESIGNATIONS. (a) Unless the durable power of | ||
attorney otherwise provides, and except as provided by Section | ||
751.031(c), authority granted to an agent under Section | ||
751.031(b)(4) empowers the agent to: | ||
(1) create or change a beneficiary designation under | ||
an account, contract, or another arrangement that authorizes the | ||
principal to designate a beneficiary, including an insurance or | ||
annuity contract, a qualified or nonqualified retirement plan, | ||
including a retirement plan as defined by Section 752.113, an | ||
employment agreement, including a deferred compensation agreement, | ||
and a residency agreement; | ||
(2) enter into or change a P.O.D. account or trust | ||
account under Chapter 113; or | ||
(3) create or change a nontestamentary payment or | ||
transfer under Chapter 111. | ||
(b) If an agent is granted authority under Section | ||
751.031(b)(4) and the durable power of attorney grants the | ||
authority to the agent described in Section 752.108 or 752.113, | ||
then, unless the power of attorney otherwise provides, the | ||
authority of the agent to designate the agent as a beneficiary is | ||
not subject to the limitations prescribed by Sections 752.108(b) | ||
and 752.113(c). | ||
(c) If an agent is not granted authority under Section | ||
751.031(b)(4) but the durable power of attorney grants the | ||
authority to the agent described in Section 752.108 or 752.113, | ||
then, unless the power of attorney otherwise provides and | ||
notwithstanding Section 751.031, the agent's authority to | ||
designate the agent as a beneficiary is subject to the limitations | ||
prescribed by Sections 752.108(b) and 752.113(c). | ||
Sec. 751.034. INCORPORATION OF AUTHORITY. (a) An agent has | ||
authority described in this chapter if the durable power of | ||
attorney refers to general authority with respect to the | ||
descriptive term for the subjects stated in Chapter 752 or cites the | ||
section in which the authority is described. | ||
(b) A reference in a durable power of attorney to general | ||
authority with respect to the descriptive term for a subject in | ||
Chapter 752 or a citation to one of those sections incorporates the | ||
entire section as if the section were set out in its entirety in the | ||
power of attorney. | ||
(c) A principal may modify authority incorporated by | ||
reference. | ||
SECTION 4. Sections 751.051, 751.057, 751.101, 751.102, | ||
751.103, 751.104, 751.105, and 751.106, Estates Code, are amended | ||
to read as follows: | ||
Sec. 751.051. EFFECT OF ACTS PERFORMED BY [ |
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act performed by an [ |
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power of attorney [ |
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binds the principal and the principal's successors in interest[ |
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as if the principal had performed the act [ |
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Sec. 751.057. EFFECT OF BANKRUPTCY PROCEEDING. (a) The | ||
filing of a voluntary or involuntary petition in bankruptcy in | ||
connection with the debts of a principal who has executed a durable | ||
power of attorney does not revoke or terminate the agency as to the | ||
principal's [ |
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(b) Any act the [ |
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with respect to the principal's property is subject to the | ||
limitations and requirements of the United States Bankruptcy Code | ||
(11 U.S.C. Section 101 et seq.) until a final determination is made | ||
in the bankruptcy proceeding. | ||
Sec. 751.101. FIDUCIARY DUTIES. A person who accepts | ||
appointment as an agent under a durable power of attorney as | ||
provided by Section 751.022 [ |
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fiduciary as to the principal only when acting as an agent under the | ||
power of attorney and has a duty to inform and to account for | ||
actions taken under the power of attorney. | ||
Sec. 751.102. DUTY TO TIMELY INFORM PRINCIPAL. (a) The | ||
[ |
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each action taken under a durable [ |
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(b) Failure of an [ |
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inform, as to third parties, does not invalidate any action of the | ||
[ |
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Sec. 751.103. MAINTENANCE OF RECORDS. (a) The [ |
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decision made by the [ |
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(b) The [ |
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records until delivered to the principal, released by the | ||
principal, or discharged by a court. | ||
Sec. 751.104. ACCOUNTING. (a) The principal may demand an | ||
accounting by the [ |
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(b) Unless otherwise directed by the principal, an | ||
accounting under Subsection (a) must include: | ||
(1) the property belonging to the principal that has | ||
come to the [ |
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[ |
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(2) each action taken or decision made by the | ||
[ |
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(3) a complete account of receipts, disbursements, and | ||
other actions of the [ |
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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 [ |
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(A) an adequate description of each asset; and | ||
(B) the asset's current value, if the value is | ||
known to the [ |
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(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 | ||
[ |
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understanding of the exact condition of the property belonging to | ||
the principal. | ||
(c) Unless directed otherwise by the principal, the | ||
[ |
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documentation regarding the principal's property. | ||
Sec. 751.105. EFFECT OF FAILURE TO COMPLY; SUIT. If the | ||
[ |
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principal, provide documentation, or deliver an accounting under | ||
Section 751.104 within 60 days of a demand under that section, or a | ||
longer or shorter period as demanded by the principal or ordered by | ||
a court, the principal may file suit to: | ||
(1) compel the [ |
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the accounting or the assets; or | ||
(2) terminate the durable power of attorney. | ||
Sec. 751.106. EFFECT OF SUBCHAPTER ON PRINCIPAL'S | ||
RIGHTS. This subchapter does not limit the right of the principal | ||
to terminate the durable power of attorney or to make additional | ||
requirements of or to give additional instructions to the [ |
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SECTION 5. Chapter 751, Estates Code, is amended by adding | ||
Subchapters C-1 and C-2 to read as follows: | ||
SUBCHAPTER C-1. OTHER DUTIES OF AGENT | ||
Sec. 751.121. DUTY TO NOTIFY OF BREACH OF FIDUCIARY DUTY BY | ||
OTHER AGENT. (a) An agent who has actual knowledge of a breach or | ||
imminent breach of fiduciary duty by another agent shall notify the | ||
principal and, if the principal is incapacitated, take any action | ||
reasonably appropriate under the circumstances to safeguard the | ||
principal's best interest. An agent who fails to notify the | ||
principal or take action as required by this subsection is liable | ||
for the reasonably foreseeable damages that could have been avoided | ||
if the agent had notified the principal or taken the action. | ||
(b) Except as otherwise provided by Subsection (a) or the | ||
durable power of attorney, an agent who does not participate in or | ||
conceal a breach of fiduciary duty committed by another agent, | ||
including a predecessor agent, is not liable for the actions of the | ||
other agent. | ||
Sec. 751.122. DUTY TO PRESERVE PRINCIPAL'S ESTATE PLAN. An | ||
agent shall preserve to the extent reasonably possible the | ||
principal's estate plan to the extent the agent has actual | ||
knowledge of the plan if preserving the plan is consistent with the | ||
principal's best interest based on all relevant factors, including: | ||
(1) the value and nature of the principal's property; | ||
(2) the principal's foreseeable obligations and need | ||
for maintenance; | ||
(3) minimization of taxes, including income, estate, | ||
inheritance, generation-skipping transfer, and gift taxes; and | ||
(4) eligibility for a benefit, a program, or | ||
assistance under a statute or regulation. | ||
SUBCHAPTER C-2. DURATION OF DURABLE POWER OF ATTORNEY AND AGENT'S | ||
AUTHORITY | ||
Sec. 751.131. TERMINATION OF DURABLE POWER OF ATTORNEY. A | ||
durable power of attorney terminates when: | ||
(1) the principal dies; | ||
(2) the principal revokes the power of attorney; | ||
(3) the power of attorney provides that it terminates; | ||
(4) the purpose of the power of attorney is | ||
accomplished; | ||
(5) one of the circumstances with respect to an agent | ||
described by Section 751.132(a)(1), (2), or (3) arises and the | ||
power of attorney does not provide for another agent to act under | ||
the power of attorney; or | ||
(6) a permanent guardian of the estate of the | ||
principal has qualified to serve in that capacity as provided by | ||
Section 751.133. | ||
Sec. 751.132. TERMINATION OF AGENT'S AUTHORITY. (a) An | ||
agent's authority under a durable power of attorney terminates | ||
when: | ||
(1) the principal revokes the authority; | ||
(2) the agent dies, becomes incapacitated, is no | ||
longer qualified, or resigns; | ||
(3) the agent's marriage to the principal is dissolved | ||
by court decree of divorce or annulment or is declared void by a | ||
court, unless the power of attorney otherwise provides; or | ||
(4) the power of attorney terminates. | ||
(b) Unless the durable power of attorney otherwise | ||
provides, an agent's authority may be exercised until the agent's | ||
authority terminates under Subsection (a), notwithstanding a lapse | ||
of time since the execution of the power of attorney. | ||
Sec. 751.134. EFFECT ON CERTAIN PERSONS OF TERMINATION OF | ||
DURABLE POWER OF ATTORNEY OR AGENT'S AUTHORITY. Termination of an | ||
agent's authority or of a durable power of attorney is not effective | ||
as to the agent or another person who, without actual knowledge of | ||
the termination, acts in good faith under or in reliance on the | ||
power of attorney. An act performed as described by this section, | ||
unless otherwise invalid or unenforceable, binds the principal and | ||
the principal's successors in interest. | ||
Sec. 751.135. PREVIOUS DURABLE POWER OF ATTORNEY CONTINUES | ||
IN EFFECT UNTIL REVOKED. The execution of a durable power of | ||
attorney does not revoke a durable power of attorney previously | ||
executed by the principal unless the subsequent power of attorney | ||
provides that the previous power of attorney is revoked or that all | ||
other durable powers of attorney are revoked. | ||
SECTION 6. Section 751.052, Estates Code, is transferred to | ||
Subchapter C-2, Chapter 751, Estates Code, as added by this Act, | ||
redesignated as Section 751.133, Estates Code, and amended to read | ||
as follows: | ||
Sec. 751.133 [ |
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AGENT TO COURT-APPOINTED GUARDIAN OF ESTATE. (a) If, after | ||
execution of a durable power of attorney, a court of the principal's | ||
domicile appoints a permanent guardian of the estate of the | ||
principal, the powers of the [ |
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on the qualification of the guardian of the estate. The [ |
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(1) deliver to the guardian of the estate all assets of | ||
the incapacitated person's [ |
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possession of the [ |
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(2) account to the guardian of the estate as the | ||
[ |
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principal had terminated the powers of the [ |
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agent. | ||
(b) If, after execution of a durable power of attorney, a | ||
court of the principal's domicile appoints a temporary guardian of | ||
the estate of the principal, the court may suspend the powers of the | ||
[ |
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guardian of the estate until the date the term of the temporary | ||
guardian expires. This subsection may not be construed to prohibit | ||
the application for or issuance of a temporary restraining order | ||
under applicable law. | ||
SECTION 7. Section 751.151, Estates Code, is amended to | ||
read as follows: | ||
Sec. 751.151. RECORDING FOR REAL PROPERTY TRANSACTIONS | ||
REQUIRING EXECUTION AND DELIVERY OF INSTRUMENTS. A durable power | ||
of attorney for a real property transaction requiring the execution | ||
and delivery of an instrument that is to be recorded, including a | ||
release, assignment, satisfaction, mortgage, including a reverse | ||
mortgage, security agreement, deed of trust, encumbrance, deed of | ||
conveyance, oil, gas, or other mineral lease, memorandum of a | ||
lease, lien, including a home equity lien, or other claim or right | ||
to real property, must be recorded in the office of the county clerk | ||
of the county in which the property is located not later than the | ||
30th day after the date the instrument is filed for recording. | ||
SECTION 8. Chapter 751, Estates Code, is amended by adding | ||
Subchapters E and F to read as follows: | ||
SUBCHAPTER E. ACCEPTANCE OF AND RELIANCE ON DURABLE POWER OF | ||
ATTORNEY | ||
Sec. 751.201. ACCEPTANCE OF DURABLE POWER OF ATTORNEY | ||
REQUIRED; EXCEPTIONS. (a) Unless one or more grounds for refusal | ||
under Section 751.206 exist, a person who is presented with and | ||
asked to accept a durable power of attorney by an agent with | ||
authority to act under the power of attorney shall: | ||
(1) accept the power of attorney; or | ||
(2) before accepting the power of attorney: | ||
(A) request an agent's certification under | ||
Section 751.203 or an opinion of counsel under Section 751.204 not | ||
later than the 10th business day after the date the power of | ||
attorney is presented, except as provided by Subsection (c); or | ||
(B) if applicable, request an English | ||
translation under Section 751.205 not later than the fifth business | ||
day after the date the power of attorney is presented, except as | ||
provided by Subsection (c). | ||
(b) Unless one or more grounds for refusal under Section | ||
751.206 exist and except as provided by Subsection (c), a person who | ||
requests: | ||
(1) an agent's certification must accept the durable | ||
power of attorney not later than the seventh business day after the | ||
date the person receives the requested certification; and | ||
(2) an opinion of counsel must accept the durable | ||
power of attorney not later than the seventh business day after the | ||
date the person receives the requested opinion. | ||
(c) An agent presenting a durable power of attorney for | ||
acceptance and the person to whom the power of attorney is presented | ||
may agree to extend a period prescribed by Subsection (a) or (b). | ||
(d) If an English translation of a durable power of attorney | ||
is requested as authorized by Subsection (a)(2)(B), the power of | ||
attorney is not considered presented for acceptance under | ||
Subsection (a) until the date the requestor receives the | ||
translation. On and after that date, the power of attorney shall be | ||
treated as a power of attorney originally prepared in English for | ||
all the purposes of this subchapter. | ||
(e) A person is not required to accept a durable power of | ||
attorney under this section if the agent refuses to or does not | ||
provide a requested certification, opinion of counsel, or English | ||
translation under this subchapter. | ||
Sec. 751.202. OTHER FORM OR RECORDING OF DURABLE POWER OF | ||
ATTORNEY AS CONDITION OF ACCEPTANCE PROHIBITED. A person who is | ||
asked to accept a durable power of attorney under Section 751.201 | ||
may not require that: | ||
(1) an additional or different form of the power of | ||
attorney be presented for authority that is granted in the power of | ||
attorney presented to the person; or | ||
(2) the power of attorney be recorded in the office of | ||
a county clerk unless the recording of the instrument is required by | ||
Section 751.151 or another law of this state. | ||
Sec. 751.203. AGENT'S CERTIFICATION. (a) Before accepting | ||
a durable power of attorney under Section 751.201, the person to | ||
whom the power of attorney is presented may request that the agent | ||
presenting the power of attorney provide to the person an agent's | ||
certification, under penalty of perjury, of any factual matter | ||
concerning the principal, agent, or power of attorney. If under its | ||
terms the power of attorney becomes effective on the disability or | ||
incapacity of the principal, the person to whom the power of | ||
attorney is presented may request that the certification include a | ||
written statement from a physician attending the principal that | ||
states that the principal is presently disabled or incapacitated. | ||
(b) A certification described by Subsection (a) may be in | ||
the following form: | ||
CERTIFICATION OF DURABLE POWER OF ATTORNEY BY AGENT | ||
I, ___________ (agent), certify under penalty of perjury | ||
that: | ||
1. I am the agent named in the power of attorney validly | ||
executed by ___________ (principal) ("principal") on ____________ | ||
(date), and the power of attorney is now in full force and effect. | ||
2. The principal is not deceased and is presently domiciled | ||
in ___________ (city and state/territory or foreign country). | ||
3. To the best of my knowledge after diligent search and | ||
inquiry: | ||
a. The power of attorney has not been revoked by the | ||
principal or suspended or terminated by the occurrence of any | ||
event, whether or not referenced in the power of attorney; | ||
b. At the time the power of attorney was executed, the | ||
principal was mentally competent to transact legal matters and was | ||
not acting under the undue influence of any other person; | ||
c. A permanent guardian of the estate of the principal | ||
has not qualified to serve in that capacity; | ||
d. My powers under the power of attorney have not been | ||
suspended by a court in a temporary guardianship or other | ||
proceeding; | ||
e. If I am (or was) the principal's spouse, my marriage | ||
to the principal has not been dissolved by court decree of divorce | ||
or annulment or declared void by a court, or the power of attorney | ||
provides specifically that my appointment as the agent for the | ||
principal does not terminate if my marriage to the principal has | ||
been dissolved by court decree of divorce or annulment or declared | ||
void by a court; | ||
f. No proceeding has been commenced for a temporary or | ||
permanent guardianship of the person or estate, or both, of the | ||
principal; and | ||
g. The exercise of my authority is not prohibited by | ||
another agreement or instrument. | ||
4. If under its terms the power of attorney becomes | ||
effective on the disability or incapacity of the principal or at a | ||
future time or on the occurrence of a contingency, the principal now | ||
has a disability or is incapacitated or the specified future time or | ||
contingency has occurred. | ||
5. I am acting within the scope of my authority under the | ||
power of attorney, and my authority has not been altered or | ||
terminated. | ||
6. If applicable, I am the successor to ___________ | ||
(predecessor agent), who has resigned, died, or become | ||
incapacitated, is not qualified to serve or has declined to serve as | ||
agent, or is otherwise unable to act. There are no unsatisfied | ||
conditions remaining under the power of attorney that preclude my | ||
acting as successor agent. | ||
7. I agree not to: | ||
a. Exercise any powers granted by the power of | ||
attorney if I attain knowledge that the power of attorney has been | ||
revoked, suspended, or terminated; or | ||
b. Exercise any specific powers that have been | ||
revoked, suspended, or terminated. | ||
8. A true and correct copy of the power of attorney is | ||
attached to this document. | ||
9. If used in connection with an extension of credit under | ||
Section 50(a)(6), Article XVI, Texas Constitution, the power of | ||
attorney was executed in the office of the lender, the office of a | ||
title company, or the law office of ____________________. | ||
Date: __________, 20__. | ||
__________________________________ (signature of agent) | ||
(c) A certification made in compliance with this section is | ||
conclusive proof of the factual matter that is the subject of the | ||
certification. | ||
Sec. 751.204. OPINION OF COUNSEL. (a) Before accepting a | ||
durable power of attorney under Section 751.201, the person to whom | ||
the power of attorney is presented may request from the agent | ||
presenting the power of attorney an opinion of counsel regarding | ||
any matter of law concerning the power of attorney so long as the | ||
person provides to the agent the reason for the request in a writing | ||
or other record. | ||
(b) Except as otherwise provided in an agreement to extend | ||
the request period under Section 751.201(c), an opinion of counsel | ||
requested under this section must be provided by the principal or | ||
agent, at the principal's expense. If, without an extension, the | ||
requestor requests the opinion later than the 10th business day | ||
after the date the durable power of attorney is presented to the | ||
requestor, the principal or agent may, but is not required to, | ||
provide the opinion, at the requestor's expense. | ||
Sec. 751.205. ENGLISH TRANSLATION. (a) Before accepting a | ||
durable power of attorney under Section 751.201 that contains, | ||
wholly or partly, language other than English, the person to whom | ||
the power of attorney is presented may request from the agent | ||
presenting the power of attorney an English translation of the | ||
power of attorney. | ||
(b) Except as otherwise provided in an agreement to extend | ||
the request period under Section 751.201(c), an English translation | ||
requested under this section must be provided by the principal or | ||
agent, at the principal's expense. If, without an extension, the | ||
requestor requests the translation later than the fifth business | ||
day after the date the durable power of attorney is presented to the | ||
requestor, the principal or agent may, but is not required to, | ||
provide the translation, at the requestor's expense. | ||
Sec. 751.206. GROUNDS FOR REFUSING ACCEPTANCE. A person is | ||
not required to accept a durable power of attorney under this | ||
subchapter if: | ||
(1) the person would not otherwise be required to | ||
engage in a transaction with the principal under the same | ||
circumstances, including a circumstance in which the agent seeks | ||
to: | ||
(A) establish a customer relationship with the | ||
person under the power of attorney when the principal is not already | ||
a customer of the person or expand an existing customer | ||
relationship with the person under the power of attorney; or | ||
(B) acquire a product or service under the power | ||
of attorney that the person does not offer; | ||
(2) the person's engaging in the transaction with the | ||
agent or with the principal under the same circumstances would be | ||
inconsistent with: | ||
(A) another law of this state or a federal | ||
statute, rule, or regulation; | ||
(B) a request from a law enforcement agency; or | ||
(C) a policy adopted by the person in good faith | ||
that is necessary to comply with another law of this state or a | ||
federal statute, rule, regulation, regulatory directive, guidance, | ||
or executive order applicable to the person; | ||
(3) the person would not engage in a similar | ||
transaction with the agent because the person or an affiliate of the | ||
person: | ||
(A) has filed a suspicious activity report as | ||
described by 31 U.S.C. Section 5318(g) with respect to the | ||
principal or agent; | ||
(B) believes in good faith that the principal or | ||
agent has a prior criminal history involving financial crimes; or | ||
(C) has had a previous, unsatisfactory business | ||
relationship with the agent due to or resulting in: | ||
(i) material loss to the person; | ||
(ii) financial mismanagement by the agent; | ||
(iii) litigation between the person and the | ||
agent alleging substantial damages; or | ||
(iv) multiple nuisance lawsuits filed by | ||
the agent; | ||
(4) the person has actual knowledge of the termination | ||
of the agent's authority or of the power of attorney before an | ||
agent's exercise of authority under the power of attorney; | ||
(5) the agent refuses to comply with a request for a | ||
certification, opinion of counsel, or translation under Section | ||
751.201 or, if the agent complies with one or more of those | ||
requests, the requestor in good faith is unable to determine the | ||
validity of the power of attorney or the agent's authority to act | ||
under the power of attorney because the certification, opinion, or | ||
translation is incorrect, incomplete, unclear, limited, qualified, | ||
or otherwise deficient in a manner that makes the certification, | ||
opinion, or translation ineffective for its intended purpose, as | ||
determined in good faith by the requestor; | ||
(6) regardless of whether an agent's certification, | ||
opinion of counsel, or translation has been requested or received | ||
by the person under this subchapter, the person believes in good | ||
faith that: | ||
(A) the power of attorney is not valid; | ||
(B) the agent does not have the authority to act | ||
as attempted; or | ||
(C) the performance of the requested act would | ||
violate the terms of: | ||
(i) a business entity's governing | ||
documents; or | ||
(ii) an agreement affecting a business | ||
entity, including how the entity's business is conducted; | ||
(7) the person commenced, or has actual knowledge that | ||
another person commenced, a judicial proceeding to construe the | ||
power of attorney or review the agent's conduct and that proceeding | ||
is pending; | ||
(8) the person commenced, or has actual knowledge that | ||
another person commenced, a judicial proceeding for which a final | ||
determination was made that found: | ||
(A) the power of attorney invalid with respect to | ||
a purpose for which the power of attorney is being presented for | ||
acceptance; or | ||
(B) the agent lacked the authority to act in the | ||
same manner in which the agent is attempting to act under the power | ||
of attorney; | ||
(9) the person makes, has made, or has actual | ||
knowledge that another person has made a report to a law enforcement | ||
agency or other federal or state agency, including the Department | ||
of Family and Protective Services, stating a good faith belief that | ||
the principal may be subject to physical or financial abuse, | ||
neglect, exploitation, or abandonment by the agent or a person | ||
acting with or on behalf of the agent; | ||
(10) the person receives conflicting instructions or | ||
communications with regard to a matter from co-agents acting under | ||
the same power of attorney or from agents acting under different | ||
powers of attorney signed by the same principal or another adult | ||
acting for the principal as authorized by Section 751.0021, | ||
provided that the person may refuse to accept the power of attorney | ||
only with respect to that matter; or | ||
(11) the person is not required to accept the durable | ||
power of attorney by the law of the jurisdiction that applies in | ||
determining the power of attorney's meaning and effect, or the | ||
powers conferred under the durable power of attorney that the agent | ||
is attempting to exercise are not included within the scope of | ||
activities to which the law of that jurisdiction applies. | ||
Sec. 751.207. WRITTEN STATEMENT OF REFUSAL OF ACCEPTANCE | ||
REQUIRED. (a) Except as provided by Subsection (b), a person who | ||
refuses to accept a durable power of attorney under this subchapter | ||
shall provide to the agent presenting the power of attorney for | ||
acceptance a written statement advising the agent of the reason or | ||
reasons the person is refusing to accept the power of attorney. | ||
(b) If the reason a person is refusing to accept a durable | ||
power of attorney is a reason described by Section 751.206(2) or | ||
(3): | ||
(1) the person shall provide to the agent presenting | ||
the power of attorney for acceptance a written statement signed by | ||
the person under penalty of perjury stating that the reason for the | ||
refusal is a reason described by Section 751.206(2) or (3); and | ||
(2) the person refusing to accept the power of | ||
attorney is not required to provide any additional explanation for | ||
refusing to accept the power of attorney. | ||
(c) The person must provide to the agent the written | ||
statement required under Subsection (a) or (b) on or before the date | ||
the person would otherwise be required to accept the durable power | ||
of attorney under Section 751.201. | ||
Sec. 751.208. DATE OF ACCEPTANCE. A durable power of | ||
attorney is considered accepted by a person under Section 751.201 | ||
on the first day the person agrees to act at the agent's direction | ||
under the power of attorney. | ||
Sec. 751.209. GOOD FAITH RELIANCE ON DURABLE POWER OF | ||
ATTORNEY. (a) A person who in good faith accepts a durable power of | ||
attorney without actual knowledge that the signature of the | ||
principal or of another adult directed by the principal to sign the | ||
principal's name as authorized by Section 751.0021 is not genuine | ||
may rely on the presumption under Section 751.0022 that the | ||
signature is genuine and that the power of attorney was properly | ||
executed. | ||
(b) A person who in good faith accepts a durable power of | ||
attorney without actual knowledge that the power of attorney is | ||
void, invalid, or terminated, that the purported agent's authority | ||
is void, invalid, or terminated, or that the agent is exceeding or | ||
improperly exercising the agent's authority may rely on the power | ||
of attorney as if: | ||
(1) the power of attorney were genuine, valid, and | ||
still in effect; | ||
(2) the agent's authority were genuine, valid, and | ||
still in effect; and | ||
(3) the agent had not exceeded and had properly | ||
exercised the authority. | ||
Sec. 751.210. RELIANCE ON CERTAIN REQUESTED INFORMATION. A | ||
person may rely on, without further investigation or liability to | ||
another person, an agent's certification, opinion of counsel, or | ||
English translation that is provided to the person under this | ||
subchapter. | ||
Sec. 751.211. ACTUAL KNOWLEDGE OF PERSON WHEN TRANSACTIONS | ||
CONDUCTED THROUGH EMPLOYEES. (a) This section applies to a person | ||
who conducts a transaction or activity through an employee of the | ||
person. | ||
(b) For purposes of this chapter, a person is not considered | ||
to have actual knowledge of a fact relating to a durable power of | ||
attorney, principal, or agent if the employee conducting the | ||
transaction or activity involving the power of attorney does not | ||
have actual knowledge of the fact. | ||
(c) For purposes of this chapter, a person is considered to | ||
have actual knowledge of a fact relating to a durable power of | ||
attorney, principal, or agent if the employee conducting the | ||
transaction or activity involving the power of attorney has actual | ||
knowledge of the fact. | ||
Sec. 751.212. CAUSE OF ACTION FOR REFUSAL TO ACCEPT DURABLE | ||
POWER OF ATTORNEY. (a) The principal or an agent acting on the | ||
principal's behalf may bring an action against a person who refuses | ||
to accept a durable power of attorney in violation of this | ||
subchapter. | ||
(b) An action under Subsection (a) may not be commenced | ||
against a person until after the date the person is required to | ||
accept the durable power of attorney under Section 751.201. | ||
(c) If the court finds that the person refused to accept the | ||
durable power of attorney in violation of this subchapter, the | ||
court, as the exclusive remedy under this chapter: | ||
(1) shall order the person to accept the power of | ||
attorney; and | ||
(2) may award the plaintiff court costs and reasonable | ||
and necessary attorney's fees. | ||
(d) The court shall dismiss an action under this section | ||
that was commenced after the date a written statement described by | ||
Section 751.207(b) was provided to the agent. | ||
(e) Notwithstanding Subsection (c), if the agent receives a | ||
written statement described by Section 751.207(b) after the date a | ||
timely action is commenced under this section, the court may not | ||
order the person to accept the durable power of attorney, but | ||
instead may award the plaintiff court costs and reasonable and | ||
necessary attorney's fees as the exclusive remedy under this | ||
chapter. | ||
Sec. 751.213. LIABILITY OF PRINCIPAL. (a) Subsection (b) | ||
applies to an action brought under Section 751.212 if: | ||
(1) the court finds that the action was commenced | ||
after the date the written statement described by Section | ||
751.207(b) was timely provided to the agent; | ||
(2) the court expressly finds that the refusal of the | ||
person against whom the action was brought to accept the durable | ||
power of attorney was permitted under this chapter; or | ||
(3) Section 751.212(e) does not apply and the court | ||
does not issue an order ordering the person to accept the power of | ||
attorney. | ||
(b) Under any of the circumstances described by Subsection | ||
(a), the principal may be liable to the person who refused to accept | ||
the durable power of attorney for court costs and reasonable and | ||
necessary attorney's fees incurred in defending the action as the | ||
exclusive remedy under this chapter. | ||
SUBCHAPTER F. CIVIL REMEDIES | ||
Sec. 751.251. JUDICIAL RELIEF. (a) The following may bring | ||
an action requesting a court to construe, or determine the validity | ||
or enforceability of, a durable power of attorney, or to review an | ||
agent's conduct under a durable power of attorney and grant | ||
appropriate relief: | ||
(1) the principal or the agent; | ||
(2) a guardian, conservator, or other fiduciary acting | ||
for the principal; | ||
(3) a person named as a beneficiary to receive | ||
property, a benefit, or a contractual right on the principal's | ||
death; | ||
(4) a governmental agency with regulatory authority to | ||
protect the principal's welfare; and | ||
(5) a person who demonstrates to the court sufficient | ||
interest in the principal's welfare or estate. | ||
(b) A person who is asked to accept a durable power of | ||
attorney may bring an action requesting a court to construe, or | ||
determine the validity or enforceability of, the power of attorney. | ||
(c) On the principal's motion, the court shall dismiss an | ||
action under Subsection (a) unless the court finds that the | ||
principal lacks capacity to revoke the agent's authority or the | ||
durable power of attorney. | ||
SECTION 9. 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. IF YOU WANT YOUR AGENT TO HAVE THE AUTHORITY TO SIGN HOME | ||
EQUITY LOAN DOCUMENTS ON YOUR BEHALF, THIS POWER OF ATTORNEY MUST BE | ||
SIGNED BY YOU AT THE OFFICE OF THE LENDER, AN ATTORNEY AT LAW, OR A | ||
TITLE COMPANY. | ||
You should select someone you trust to serve as your agent | ||
[ |
||
agent's [ |
||
(1) you die or revoke the power of attorney; | ||
(2) your agent [ |
||
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 [ |
||
respect to all of the following powers that I have initialed below. | ||
(YOU MAY APPOINT CO-AGENTS. UNLESS YOU PROVIDE OTHERWISE, | ||
CO-AGENTS MAY ACT INDEPENDENTLY.) | ||
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 agent compensation | ||
(initial in front of one of the following sentences to have it | ||
apply; if no selection is made, each agent will be entitled to | ||
compensation that is reasonable under the circumstances): | ||
____ My agent is entitled to reimbursement of reasonable | ||
expenses incurred on my behalf and to compensation that is | ||
reasonable under the circumstances. | ||
____ My agent is entitled to reimbursement of reasonable | ||
expenses incurred on my behalf but shall receive no compensation | ||
for serving as my agent. | ||
Special instructions applicable to co-agents (if you have | ||
appointed co-agents to act, initial in front of one of the following | ||
sentences to have it apply; if no selection is made, each agent will | ||
be entitled to act independently): | ||
____ Each of my co-agents may act independently for me. | ||
____ My co-agents may act for me only if the co-agents act | ||
jointly. | ||
____ My co-agents may act for me only if a majority of the | ||
co-agents act jointly. | ||
Special instructions applicable to gifts (initial in front of | ||
the following sentence to have it apply): | ||
____ I grant my agent [ |
||
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 BELOW [ |
||
ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT | ||
TERMINATES [ |
||
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. Termination [ |
||
durable power of attorney is not effective as to a third party until | ||
the third party has actual knowledge [ |
||
the termination [ |
||
for any claims that arise against the third party because of | ||
reliance on this power of attorney. The meaning and effect of this | ||
durable power of attorney is determined by Texas law. | ||
If any agent named by me dies, becomes incapacitated [ |
||
|
||
named by me is dissolved by a court decree of divorce or annulment | ||
or is declared void by a court (unless I provided in this document | ||
that the dissolution or declaration does not terminate the agent's | ||
authority to act under this power of attorney), 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 [ |
||
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 [ |
||
|
||
of the principal and signing your own name as "agent" [ |
||
|
||
(Principal's Name) by (Your Signature) as Agent [ |
||
|
||
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 [ |
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(C) a complete account of receipts, | ||
disbursements, and other actions of you as agent [ |
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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 a court decree of divorce or | ||
annulment or declaration that your marriage is void, unless | ||
otherwise provided in this power of attorney; | ||
(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 [ |
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THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL | ||
RESPONSIBILITIES OF AN AGENT. | ||
SECTION 10. Subchapter B, Chapter 752, Estates Code, is | ||
amended by adding Section 752.052 to read as follows: | ||
Sec. 752.052. MODIFYING STATUTORY FORM TO GRANT SPECIFIC | ||
AUTHORITY. The statutory durable power of attorney may be modified | ||
to allow the principal to grant the agent the specific authority | ||
described by Section 751.031(b) by including the following | ||
language: | ||
"GRANT OF SPECIFIC AUTHORITY (OPTIONAL) | ||
My agent MAY NOT do any of the following specific acts for me | ||
UNLESS I have INITIALED the specific authority listed below: | ||
(CAUTION: Granting any of the following will give your agent the | ||
authority to take actions that could significantly reduce your | ||
property or change how your property is distributed at your death. | ||
INITIAL ONLY the specific authority you WANT to give your agent. If | ||
you DO NOT want to grant your agent one or more of the following | ||
powers, you may also CROSS OUT a power you DO NOT want to grant.) | ||
____ Create, amend, revoke, or terminate an inter vivos | ||
trust | ||
____ Make a gift, subject to the limitations of Section | ||
751.032 of the Durable Power of Attorney Act (Section 751.032, | ||
Estates Code) and any special instructions in this power of | ||
attorney | ||
____ Create or change rights of survivorship | ||
____ Create or change a beneficiary designation | ||
____ Authorize another person to exercise the authority | ||
granted under this power of attorney". | ||
SECTION 11. Section 752.102, Estates Code, is amended to | ||
read as follows: | ||
Sec. 752.102. REAL PROPERTY TRANSACTIONS. (a) The | ||
language conferring authority with respect to real property | ||
transactions in a statutory durable power of attorney empowers the | ||
[ |
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specific description of the real property, to: | ||
(1) accept as a gift or as security for a loan or | ||
reject, demand, buy, lease, receive, or otherwise acquire an | ||
interest in real property or a right incident to real property; | ||
(2) sell, exchange, convey with or without covenants, | ||
quitclaim, release, surrender, mortgage, encumber, partition or | ||
consent to partitioning, subdivide, apply for zoning, rezoning, or | ||
other governmental permits, plat or consent to platting, develop, | ||
grant options concerning, lease or sublet, or otherwise dispose of | ||
an estate or interest in real property or a right incident to real | ||
property; | ||
(3) release, assign, satisfy, and enforce by | ||
litigation, action, or otherwise a mortgage, deed of trust, | ||
encumbrance, lien, or other claim to real property that exists or is | ||
claimed to exist; | ||
(4) perform any act of management or of conservation | ||
with respect to an interest in real property, or a right incident to | ||
real property, owned or claimed to be owned by the principal, | ||
including the authority to: | ||
(A) insure against a casualty, liability, or | ||
loss; | ||
(B) obtain or regain possession or protect the | ||
interest or right by litigation, action, or otherwise; | ||
(C) pay, compromise, or contest taxes or | ||
assessments or apply for and receive refunds in connection with the | ||
taxes or assessments; | ||
(D) purchase supplies, hire assistance or labor, | ||
or make repairs or alterations to the real property; and | ||
(E) manage and supervise an interest in real | ||
property, including the mineral estate[ |
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(5) use, develop, alter, replace, remove, erect, or | ||
install structures or other improvements on real property in which | ||
the principal has or claims to have an estate, interest, or right; | ||
(6) participate in a reorganization with respect to | ||
real property or a legal entity that owns an interest in or right | ||
incident to real property, receive and hold shares of stock or | ||
obligations received in a plan or reorganization, and act with | ||
respect to the shares or obligations, including: | ||
(A) selling or otherwise disposing of the shares | ||
or obligations; | ||
(B) exercising or selling an option, conversion, | ||
or similar right with respect to the shares or obligations; and | ||
(C) voting the shares or obligations in person or | ||
by proxy; | ||
(7) change the form of title of an interest in or right | ||
incident to real property; [ |
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(8) dedicate easements or other real property in which | ||
the principal has or claims to have an interest to public use, with | ||
or without consideration; | ||
(9) enter into mineral transactions, including: | ||
(A) negotiating and making oil, gas, and other | ||
mineral leases covering any land, mineral, or royalty interest in | ||
which the principal has or claims to have an interest; | ||
(B) pooling and unitizing all or part of the | ||
principal's land, mineral leasehold, mineral, royalty, or other | ||
interest with land, mineral leasehold, mineral, royalty, or other | ||
interest of one or more persons for the purpose of developing and | ||
producing oil, gas, or other minerals, and making leases or | ||
assignments granting the right to pool and unitize; | ||
(C) entering into contracts and agreements | ||
concerning the installation and operation of plants or other | ||
facilities for the cycling, repressuring, processing, or other | ||
treating or handling of oil, gas, or other minerals; | ||
(D) conducting or contracting for the conducting | ||
of seismic evaluation operations; | ||
(E) drilling or contracting for the drilling of | ||
wells for oil, gas, or other minerals; | ||
(F) contracting for and making "dry hole" and | ||
"bottom hole" contributions of cash, leasehold interests, or other | ||
interests toward the drilling of wells; | ||
(G) using or contracting for the use of any | ||
method of secondary or tertiary recovery of any mineral, including | ||
the injection of water, gas, air, or other substances; | ||
(H) purchasing oil, gas, or other mineral leases, | ||
leasehold interests, or other interests for any type of | ||
consideration, including farmout agreements requiring the drilling | ||
or reworking of wells or participation in the drilling or reworking | ||
of wells; | ||
(I) entering into farmout agreements committing | ||
the principal to assign oil, gas, or other mineral leases or | ||
interests in consideration for the drilling of wells or other oil, | ||
gas, or mineral operations; | ||
(J) negotiating the transfer of and transferring | ||
oil, gas, or other mineral leases or interests for any | ||
consideration, such as retained overriding royalty interests of any | ||
nature, drilling or reworking commitments, or production | ||
interests; | ||
(K) executing and entering into contracts, | ||
conveyances, and other agreements or transfers considered | ||
necessary or desirable to carry out the powers granted in this | ||
section, including entering into and executing division orders, | ||
oil, gas, or other mineral sales contracts, exploration agreements, | ||
processing agreements, and other contracts relating to the | ||
processing, handling, treating, transporting, and marketing of | ||
oil, gas, or other mineral production from or accruing to the | ||
principal and receiving and receipting for the proceeds of those | ||
contracts, conveyances, and other agreements and transfers on | ||
behalf of the principal; and | ||
(L) taking an action described by Paragraph (K) | ||
regardless of whether the action is, at the time the action is taken | ||
or subsequently, recognized or considered as a common or proper | ||
practice by those engaged in the business of prospecting for, | ||
developing, producing, processing, transporting, or marketing | ||
minerals; and | ||
(10) designate the property that constitutes the | ||
principal's homestead. | ||
(b) The power to mortgage and encumber real property | ||
provided by this section includes the power to execute documents | ||
necessary to create a lien against the principal's homestead as | ||
provided by Section 50, Article XVI, Texas Constitution, and to | ||
consent to the creation of a lien against property owned by the | ||
principal's spouse in which the principal has a homestead interest. | ||
SECTION 12. Section 752.108(b), Estates Code, is amended to | ||
read as follows: | ||
(b) Unless the principal has granted the authority to create | ||
or change a beneficiary designation expressly as required by | ||
Section 751.031(b)(4), an [ |
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named a beneficiary of an insurance contract or an extension, | ||
renewal, or substitute for the contract only to the extent the | ||
[ |
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SECTION 13. Sections 752.109 and 752.111, Estates Code, are | ||
amended to read as follows: | ||
Sec. 752.109. ESTATE, TRUST, AND OTHER BENEFICIARY | ||
TRANSACTIONS. The language conferring authority with respect to | ||
estate, trust, and other beneficiary transactions in a statutory | ||
durable power of attorney empowers the [ |
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to act for the principal in all matters that affect a trust, probate | ||
estate, guardianship, conservatorship, life estate, escrow, | ||
custodianship, or other fund from which the principal is, may | ||
become, or claims to be entitled, as a beneficiary, to a share or | ||
payment, including to: | ||
(1) accept, reject, disclaim, receive, receipt for, | ||
sell, assign, release, pledge, exchange, or consent to a reduction | ||
in or modification of a share in or payment from the fund; | ||
(2) demand or obtain by litigation, action, or | ||
otherwise money or any other thing of value to which the principal | ||
is, may become, or claims to be entitled because of the fund; | ||
(3) initiate, participate in, or oppose a legal or | ||
judicial proceeding to: | ||
(A) ascertain the meaning, validity, or effect of | ||
a deed, will, declaration of trust, or other instrument or | ||
transaction affecting the interest of the principal; or | ||
(B) remove, substitute, or surcharge a | ||
fiduciary; | ||
(4) conserve, invest, disburse, or use anything | ||
received for an authorized purpose; and | ||
(5) transfer all or part of the principal's interest in | ||
real property, stocks, bonds, accounts with financial | ||
institutions, insurance, and other property to the trustee of a | ||
revocable trust created by the principal as settlor. | ||
Sec. 752.111. PERSONAL AND FAMILY MAINTENANCE. The | ||
language conferring authority with respect to personal and family | ||
maintenance in a statutory durable power of attorney empowers the | ||
[ |
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(1) perform the acts necessary to maintain the | ||
customary standard of living of the principal, the principal's | ||
spouse and children, and other individuals customarily or legally | ||
entitled to be supported by the principal, including: | ||
(A) providing living quarters by purchase, | ||
lease, or other contract; or | ||
(B) paying the operating costs, including | ||
interest, amortization payments, repairs, and taxes on premises | ||
owned by the principal and occupied by those individuals; | ||
(2) provide for the individuals described by | ||
Subdivision (1): | ||
(A) normal domestic help; | ||
(B) usual vacations and travel expenses; and | ||
(C) money for shelter, clothing, food, | ||
appropriate education, and other living costs; | ||
(3) pay necessary medical, dental, and surgical care, | ||
hospitalization, and custodial care for the individuals described | ||
by Subdivision (1); | ||
(4) continue any provision made by the principal for | ||
the individuals described by Subdivision (1) for automobiles or | ||
other means of transportation, including registering, licensing, | ||
insuring, and replacing the automobiles or other means of | ||
transportation; | ||
(5) maintain or open charge accounts for the | ||
convenience of the individuals described by Subdivision (1) and | ||
open new accounts the [ |
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desirable to accomplish a lawful purpose; [ |
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(6) continue: | ||
(A) payments incidental to the membership or | ||
affiliation of the principal in a church, club, society, order, or | ||
other organization; or | ||
(B) contributions to those organizations; | ||
(7) perform all acts necessary in relation to the | ||
principal's mail, including: | ||
(A) receiving, signing for, opening, reading, | ||
and responding to any mail addressed to the principal, whether | ||
through the United States Postal Service or a private mail service; | ||
(B) forwarding the principal's mail to any | ||
address; and | ||
(C) representing the principal before the United | ||
States Postal Service in all matters relating to mail service; and | ||
(8) subject to the needs of the individuals described | ||
by Subdivision (1), provide for the reasonable care of the | ||
principal's pets. | ||
SECTION 14. Sections 752.113(b) and (c), Estates Code, are | ||
amended to read as follows: | ||
(b) The language conferring authority with respect to | ||
retirement plan transactions in a statutory durable power of | ||
attorney empowers the [ |
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lawful act the principal may perform with respect to a transaction | ||
relating to a retirement plan, including to: | ||
(1) apply for service or disability retirement | ||
benefits; | ||
(2) select payment options under any retirement plan | ||
in which the principal participates, including plans for | ||
self-employed individuals; | ||
(3) designate or change the designation of a | ||
beneficiary or benefits payable by a retirement plan, except as | ||
provided by Subsection (c); | ||
(4) make voluntary contributions to retirement plans | ||
if authorized by the plan; | ||
(5) exercise the investment powers available under any | ||
self-directed retirement plan; | ||
(6) make rollovers of plan benefits into other | ||
retirement plans; | ||
(7) borrow from, sell assets to, and purchase assets | ||
from retirement plans if authorized by the plan; | ||
(8) waive the principal's right to be a beneficiary of | ||
a joint or survivor annuity if the principal is not the participant | ||
in the retirement plan [ |
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(9) receive, endorse, and cash payments from a | ||
retirement plan; | ||
(10) waive the principal's right to receive all or a | ||
portion of benefits payable by a retirement plan; and | ||
(11) request and receive information relating to the | ||
principal from retirement plan records. | ||
(c) Unless the principal has granted the authority to create | ||
or change a beneficiary designation expressly as required by | ||
Section 751.031(b)(4), an [ |
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named a beneficiary under a retirement plan only to the extent the | ||
[ |
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principal under the retirement plan, or in the case of a rollover or | ||
trustee-to-trustee transfer, the predecessor retirement plan | ||
[ |
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SECTION 15. The following sections of the Estates Code are | ||
repealed: | ||
(1) Section 751.004; | ||
(2) Section 751.053; | ||
(3) Section 751.054; | ||
(4) Section 751.055; | ||
(5) Section 751.056; and | ||
(6) Section 751.058. | ||
SECTION 16. (a) Except as otherwise provided by this Act, | ||
this Act applies to: | ||
(1) a durable power of attorney, including a statutory | ||
durable power of attorney, created before, on, or after the | ||
effective date of this Act; and | ||
(2) a judicial proceeding concerning a durable power | ||
of attorney pending on, or commenced on or after, the effective date | ||
of this Act. | ||
(b) The following provisions apply only to a durable power | ||
of attorney, including a statutory durable power of attorney, | ||
executed on or after the effective date of this Act: | ||
(1) Section 751.024, Estates Code, as added by this | ||
Act; | ||
(2) Subchapter A-2, Chapter 751, Estates Code, as | ||
added by this Act; | ||
(3) Subchapters B, C, and D, Chapter 751, Estates | ||
Code, as amended by this Act; and | ||
(4) Chapter 752, Estates Code, as amended by this Act. | ||
(c) A durable power of attorney, including a statutory | ||
durable power of attorney, executed before the effective date of | ||
this Act is governed by the provisions specified in Subsections | ||
(b)(3) and (4) of this section as those provisions existed on the | ||
date the durable power of attorney was executed, and the former law | ||
is continued in effect for that purpose. | ||
(d) If the court finds that application of a provision of | ||
this Act would substantially interfere with the effective conduct | ||
of a judicial proceeding concerning a durable power of attorney | ||
commenced before the effective date of this Act or would prejudice | ||
the rights of a party to the proceeding, the provision of this Act | ||
does not apply and the former law continues in effect for that | ||
purpose and applies in those circumstances. | ||
(e) An act performed by a principal or agent with respect to | ||
a durable power of attorney before the effective date of this Act is | ||
not affected by this Act. | ||
SECTION 17. This Act takes effect September 1, 2017. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I certify that H.B. No. 1974 was passed by the House on May | ||
11, 2017, by the following vote: Yeas 130, Nays 13, 1 present, not | ||
voting; and that the House concurred in Senate amendments to H.B. | ||
No. 1974 on Ma | ||
y 26, 2017, by the following vote: Yeas 135, Nays 11, | ||
1 present, not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
I certify that H.B. No. 1974 was passed by the Senate, with | ||
amendments, on May 24, 2017, by the following vote: Yeas 30, Nays | ||
1. | ||
______________________________ | ||
Secretary of the Senate | ||
APPROVED: __________________ | ||
Date | ||
__________________ | ||
Governor |