Bill Text: TX HB3095 | 2015-2016 | 84th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to durable powers of attorney and advance directives.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2015-05-18 - Referred to State Affairs [HB3095 Detail]
Download: Texas-2015-HB3095-Introduced.html
Bill Title: Relating to durable powers of attorney and advance directives.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2015-05-18 - Referred to State Affairs [HB3095 Detail]
Download: Texas-2015-HB3095-Introduced.html
84R6538 CLG/SCL-F | ||
By: Thompson of Harris | H.B. No. 3095 |
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relating to durable powers of attorney and advance directives; | ||||
affecting laws subject to criminal penalties. | ||||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||||
ARTICLE 1. DURABLE POWERS OF ATTORNEY | ||||
SECTION 1.01. Section 751.002, Estates Code, is amended to | ||||
read as follows: | ||||
Sec. 751.002. DEFINITIONS [ |
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ATTORNEY AND AGENT. (a) A "durable power of attorney" means a | ||||
written instrument that: | ||||
(1) designates another person as [ |
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agent; | ||||
(2) is signed by an adult principal or in the adult | ||||
principal's conscious presence by another individual directed by | ||||
the principal to sign the principal's name on the durable power of | ||||
attorney; | ||||
(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 | ||||
show the principal's intent that the authority conferred on the | ||||
attorney in fact or agent shall be exercised notwithstanding the | ||||
principal's subsequent disability or incapacity; and | ||||
(4) is acknowledged by the principal 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 the jurisdiction that determines the | ||||
meaning and effect of a power of attorney under Section 751.009 | ||||
provides that the authority conferred on the agent is exercisable | ||||
notwithstanding the principal's subsequent disability or | ||||
incapacity, the power of attorney is considered a durable power of | ||||
attorney under this subtitle. | ||||
(c) In this subtitle, the term "agent" includes an "attorney | ||||
in fact." | ||||
SECTION 1.02. Subchapter A, Chapter 751, Estates Code, is | ||||
amended by adding Sections 751.007, 751.008, 751.009, 751.010, | ||||
751.011, and 751.012 to read as follows: | ||||
Sec. 751.007. PRESUMPTION OF GENUINE SIGNATURE. A | ||||
signature that purports to be the signature of the principal on a | ||||
durable power of attorney is presumed to be genuine, and the durable | ||||
power of attorney is presumed to have been executed under Section | ||||
751.002 if the officer taking the acknowledgment has complied with | ||||
the requirements of Section 121.004(b), Civil Practice and Remedies | ||||
Code. | ||||
Sec. 751.008. 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 751.002. | ||||
(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 751.009; 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, a photocopy or electronically transmitted copy of an | ||||
original durable power of attorney has the same effect as the | ||||
original instrument. | ||||
Sec. 751.009. 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 the law of the jurisdiction in which the durable | ||||
power of attorney was executed. | ||||
Sec. 751.010. JUDICIAL RELIEF. (a) The following may bring | ||||
an action in which a court is requested to construe a durable power | ||||
of attorney or review the agent's conduct 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 any | ||||
property, benefit, or contractual right on the principal's death; | ||||
(4) a governmental agency having regulatory authority | ||||
to protect the welfare of the principal; and | ||||
(5) a person who demonstrates to the court sufficient | ||||
interest in the principal's welfare or estate. | ||||
(b) A person who is requested to accept a durable power of | ||||
attorney may bring an action in a court to construe the durable | ||||
power of attorney. | ||||
(c) On motion by the principal, the court shall dismiss an | ||||
action filed under this section unless the court finds that the | ||||
principal lacks capacity to revoke the agent's authority or the | ||||
durable power of attorney. | ||||
Sec. 751.011. CO-AGENTS AND SUCCESSOR AGENTS. (a) A | ||||
principal may designate 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. | ||||
(b) A principal may designate one or more successor agents | ||||
to act if an agent resigns, dies, becomes incapacitated, is not | ||||
qualified to serve, or declines to serve. A principal may grant | ||||
authority to designate one or more successor agents to an agent or | ||||
other person designated by name, office, or function. 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 have resigned, died, | ||||
become incapacitated, are no longer qualified to serve, or have | ||||
declined to serve. | ||||
(c) Except as otherwise provided by Subsection (d) 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. | ||||
(d) 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, shall 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. | ||||
Sec. 751.012. REIMBURSEMENT AND COMPENSATION OF AGENT. | ||||
Unless the durable power of attorney otherwise provides, an agent | ||||
is entitled to reimbursement of reasonable expenses incurred on the | ||||
principal's behalf and to compensation that is reasonable under the | ||||
circumstances. | ||||
SECTION 1.03. The heading to Subchapter B, Chapter 751, | ||||
Estates Code, is amended to read as follows: | ||||
SUBCHAPTER B. EFFECT OF CERTAIN ACTS ON EXERCISE OF DURABLE POWER | ||||
OF ATTORNEY; DURATION; ACCEPTANCE AND RELIANCE | ||||
SECTION 1.04. Section 751.051, Estates Code, is amended to | ||||
read as follows: | ||||
Sec. 751.051. EFFECT OF ACTS PERFORMED BY [ |
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[ |
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durable power of attorney [ |
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benefit of and binds the principal and the principal's successors | ||||
in interest[ |
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(b) If a durable power of attorney grants an agent | ||||
appropriate authority with respect to a transaction, an agent may | ||||
execute and deliver the documents necessary for the transaction, | ||||
including documents creating a lien against the principal's | ||||
homestead under Section 50, Article XVI, Texas Constitution, | ||||
regardless of the fact that the durable power of attorney was signed | ||||
before the transaction. | ||||
SECTION 1.05. Section 751.052, Estates Code, is amended to | ||||
read as follows: | ||||
Sec. 751.052. RELATION OF [ |
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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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qualification of the guardian of the estate. The [ |
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(1) deliver to the guardian of the estate all assets of | ||||
the ward's estate that are in the 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 1.06. Section 751.057, Estates Code, is amended to | ||||
read as follows: | ||||
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. | ||||
SECTION 1.07. Chapter 751, Estates Code, is amended by | ||||
adding Subchapter B-1 to read as follows: | ||||
SUBCHAPTER B-1. DURATION OF DURABLE POWER OF ATTORNEY; ACCEPTANCE | ||||
OF AND RELIANCE ON DURABLE POWER OF ATTORNEY | ||||
Sec. 751.061. TERMINATION OF DURABLE POWER OF ATTORNEY. A | ||||
durable power of attorney terminates when: | ||||
(1) the principal dies; | ||||
(2) the principal revokes the durable power of | ||||
attorney; | ||||
(3) the durable power of attorney provides that it | ||||
terminates; | ||||
(4) the purpose of the durable power of attorney is | ||||
accomplished; | ||||
(5) the principal revokes the agent's authority or the | ||||
agent dies, becomes incapacitated, or resigns, and the durable | ||||
power of attorney does not provide for another agent to act under | ||||
the durable 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 751.052. | ||||
Sec. 751.062. 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, or resigns; | ||||
(3) an action is filed for the dissolution or | ||||
annulment of the agent's marriage to the principal or to declare the | ||||
marriage of the agent and principal void, unless the durable power | ||||
of attorney otherwise provides; or | ||||
(4) the durable power of attorney terminates. | ||||
(b) Unless the durable power of attorney otherwise | ||||
provides, an agent's authority may be exercised until the agency's | ||||
authority terminates under Subsection (a), notwithstanding a lapse | ||||
of time since the execution of the durable power of attorney. | ||||
Sec. 751.063. EFFECT OF TERMINATION OF DURABLE POWER OF | ||||
ATTORNEY OR AGENT'S AUTHORITY ON CERTAIN PERSONS. 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 | ||||
durable 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. 751.064. EFFECT ON PREVIOUS DURABLE POWER OF ATTORNEY. | ||||
The execution of a durable power of attorney does not revoke a | ||||
durable power of attorney previously executed by the principal | ||||
unless the subsequent durable power of attorney provides that the | ||||
previous durable power of attorney is revoked or that all other | ||||
durable powers of attorney are revoked. | ||||
Sec. 751.065. ACCEPTANCE OF AND RELIANCE ON 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 is not genuine may rely on the presumption under Section | ||||
751.007 that the signature is genuine and that the durable power of | ||||
attorney was properly executed. | ||||
(b) A person who in good faith accepts a durable power of | ||||
attorney without actual knowledge that the durable 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. | ||||
(c) A person who is requested to accept a durable power of | ||||
attorney may request, and rely on, without further investigation: | ||||
(1) an agent's certification under penalty of perjury | ||||
of any factual matter concerning the principal, agent, or power of | ||||
attorney; | ||||
(2) an English translation of the power of attorney if | ||||
the power of attorney contains, wholly or partly, language other | ||||
than English; and | ||||
(3) an opinion of counsel as to any matter of law | ||||
concerning the power of attorney if the person making the request | ||||
provides in a writing or other record the reason for the request. | ||||
(d) An English translation or an opinion of counsel | ||||
requested under this section must be provided to the principal at | ||||
the principal's own expense unless the request is made not earlier | ||||
than the seventh business day after the date the power of attorney | ||||
is presented for acceptance. | ||||
(e) For purposes of this section and Section 751.066, a | ||||
person who conducts activities through employees is without actual | ||||
knowledge of a fact relating to a durable power of attorney, a | ||||
principal, or an agent if the employee conducting the transaction | ||||
involving the power of attorney is without actual knowledge of the | ||||
fact. | ||||
Sec. 751.066. LIABILITY FOR REFUSAL TO ACCEPT POWER OF | ||||
ATTORNEY. (a) Except as otherwise provided by Subsection (d), a | ||||
person shall either accept a durable power of attorney or request a | ||||
certification, a translation, or an opinion of counsel under | ||||
Section 751.065 not later than the seventh business day after the | ||||
date the durable power of attorney is presented for acceptance. | ||||
(b) A person who requests a certification, a translation, or | ||||
an opinion of counsel under Section 751.065 must accept the durable | ||||
power of attorney not later than the fifth business day after the | ||||
date on which the certification, translation, or opinion of counsel | ||||
is received. | ||||
(c) Except as provided by Subsection (d), a person may not: | ||||
(1) require an additional or different form of durable | ||||
power of attorney for authority granted in the durable power of | ||||
attorney presented; or | ||||
(2) require that the durable power of attorney be | ||||
recorded in the official public records of a county clerk unless the | ||||
recordation is required by Section 751.151. | ||||
(d) A person is not required to accept a durable power of | ||||
attorney if: | ||||
(1) the person is not otherwise required to engage in a | ||||
transaction with the principal in the same circumstances; | ||||
(2) the person's engagement in a transaction with the | ||||
agent or the principal in the same circumstances would be | ||||
inconsistent with state or federal law other than this chapter; | ||||
(3) the person has actual knowledge of the termination | ||||
of the agent's authority or of the power of attorney before exercise | ||||
of the power; | ||||
(4) a request for a certification, a translation, or | ||||
an opinion of counsel under Section 751.065 is refused; | ||||
(5) the person in good faith believes that the power is | ||||
not valid or that the agent does not have the authority to perform | ||||
the act requested, regardless of whether a certification, a | ||||
translation, or an opinion of counsel under Section 751.065 has | ||||
been requested or provided; | ||||
(6) the person makes, 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 on | ||||
behalf of or with the agent; or | ||||
(7) the person has received conflicting instructions | ||||
or communications from co-agents regarding a matter, or in good | ||||
faith believes that co-agents do not agree regarding a matter, but | ||||
the person may refuse to accept the durable power of attorney only | ||||
with respect to that matter. | ||||
(e) A person who refuses to accept a durable power of | ||||
attorney in violation of this section is subject to: | ||||
(1) a judgment for damages to the same extent as if the | ||||
person had refused to allow the principal to act on the principal's | ||||
own behalf; | ||||
(2) a court order mandating acceptance of the durable | ||||
power of attorney; and | ||||
(3) liability for reasonable attorney's fees and costs | ||||
incurred in any proceeding that: | ||||
(A) confirms the validity of the durable power of | ||||
attorney; | ||||
(B) results in the award of damages against the | ||||
person; or | ||||
(C) mandates acceptance of the durable power of | ||||
attorney. | ||||
SECTION 1.08. Sections 751.101, 751.102, 751.103, 751.104, | ||||
751.105, and 751.106, Estates Code, are amended to read as follows: | ||||
Sec. 751.101. FIDUCIARY DUTIES. An [ |
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agent is a fiduciary 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 the power of attorney. | ||||
(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 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 power of attorney or to make additional | ||||
requirements of or to give additional instructions to the [ |
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SECTION 1.09. 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, security agreement, | ||||
home equity lien, reverse mortgage, deed of trust, encumbrance, | ||||
deed of conveyance, oil, gas, or other mineral lease, memorandum of | ||||
a lease, 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. | ||||
SECTION 1.10. Chapter 751, Estates Code, is amended by | ||||
adding Subchapter E to read as follows: | ||||
SUBCHAPTER E. AUTHORITY OF AGENT UNDER POWER OF ATTORNEY | ||||
Sec. 751.201. GRANT OF GENERAL AUTHORITY; AUTHORITY | ||||
REQUIRING SPECIFIC GRANT. (a) Only if the power of attorney | ||||
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, an agent | ||||
under a durable power of attorney, on behalf of the principal or | ||||
with respect to the principal's property, may: | ||||
(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; | ||||
(5) delegate authority granted under the power of | ||||
attorney; or | ||||
(6) waive the principal's right to be a beneficiary of | ||||
a joint and survivor annuity, including a survivor benefit under a | ||||
retirement plan. | ||||
(b) Notwithstanding a grant of authority to perform an act | ||||
described by Subsection (a), 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. | ||||
(c) Subject to Subsections (a), (b), (d), and (e), if a | ||||
durable power of attorney grants to an agent the authority to | ||||
perform all acts that a principal could perform, the agent has the | ||||
general authority conferred by Subchapter C, Chapter 752. | ||||
(d) Unless the durable power of attorney otherwise | ||||
provides, a grant of authority to make a gift is subject to Section | ||||
751.202. | ||||
(e) Subject to Subsections (a), (b), and (d), if the | ||||
subjects over which authority is granted in a durable power of | ||||
attorney are similar or overlap, the broadest authority controls. | ||||
(f) 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. | ||||
(g) An agent who is expressly granted any of the authority | ||||
under Subsection (a) shall attempt to preserve the principal's | ||||
estate plan, to the extent actually known by the agent, 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. | ||||
Sec. 751.202. GIFTS. (a) In this section, a gift for the | ||||
benefit of a person includes: | ||||
(1) a gift to a trust; | ||||
(2) an account under the Texas Uniform Transfers to | ||||
Minors Act or a similar law of any other state; and | ||||
(3) a tuition savings account or prepaid tuition plan | ||||
as described by Section 529, Internal Revenue Code of 1986. | ||||
(b) Unless the durable power of attorney otherwise | ||||
provides, language in a 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, | ||||
without regard to 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 gift tax exclusions for both spouses. | ||||
(c) An agent may make a gift of the principal's property | ||||
only as the agent determines is consistent with the principal's | ||||
objectives if actually known by the agent and, if unknown, as the | ||||
agent determines 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; | ||||
(4) eligibility for a benefit, a program, or | ||||
assistance under a statute or regulation; and | ||||
(5) the principal's personal history of making or | ||||
joining in making gifts. | ||||
Sec. 751.203. BENEFICIARY DESIGNATIONS. (a) Unless the | ||||
durable power of attorney otherwise provides, authority granted to | ||||
an agent under Section 751.201(a)(4) includes the power to: | ||||
(1) create or change a beneficiary designation under | ||||
an account, a contract, or another arrangement that authorizes the | ||||
principal to designate a beneficiary, including insurance and | ||||
annuity contracts, qualified and nonqualified retirement plans, | ||||
including those retirement plans defined by Section 752.113, | ||||
employment agreements, including deferred compensation agreements, | ||||
and residency agreements; | ||||
(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 | ||||
751.201(a)(4) and if the durable power of attorney grants the | ||||
authority to the agent in Section 752.108 or 752.113, then, unless | ||||
the durable 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 | ||||
751.201(a)(4) and if the durable power of attorney grants the | ||||
authority to the agent in Section 752.108 or 752.113, then, unless | ||||
the durable power of attorney otherwise provides and | ||||
notwithstanding Section 751.201, 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. 751.204. 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 | ||||
durable power of attorney. | ||||
(c) A principal may modify authority incorporated by | ||||
reference. | ||||
SECTION 1.11. Section 752.051, Estates Code, is amended to | ||||
read as follows: | ||||
Sec. 752.051. FORM. The following form is known as a | ||||
"statutory durable power of attorney": | ||||
STATUTORY DURABLE POWER OF ATTORNEY | ||||
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND | ||||
SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, | ||||
SUBTITLE P, TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT | ||||
THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES | ||||
NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE | ||||
DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU | ||||
LATER WISH TO DO SO. | ||||
You should select someone you trust to serve as your agent | ||||
(attorney in fact). Unless you specify otherwise, generally the | ||||
agent's (attorney in fact's) authority will continue until: | ||||
(1) you die or revoke the power of attorney; | ||||
(2) your agent (attorney in fact) resigns or is unable | ||||
to act for you; or | ||||
(3) a guardian is appointed for your estate. | ||||
I, __________ (insert your name and address), appoint | ||||
__________ (insert the name and address of the person appointed) as | ||||
my agent (attorney in fact) to act for me in any lawful way with | ||||
respect to all of the following powers that I have initialed below. | ||||
(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 gifts (initial in front of | ||||
the following sentence to have it apply): | ||||
____ I grant my agent (attorney in fact) the power to apply my | ||||
property to make gifts outright to or for the benefit of a person, | ||||
including by the exercise of a presently exercisable general power | ||||
of appointment held by me, except that the amount of a gift to an | ||||
individual may not exceed the amount of annual exclusions allowed | ||||
from the federal gift tax for the calendar year of the gift. | ||||
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS | ||||
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT. | ||||
________________________________________________________________ | ||||
________________________________________________________________ | ||||
________________________________________________________________ | ||||
________________________________________________________________ | ||||
________________________________________________________________ | ||||
________________________________________________________________ | ||||
________________________________________________________________ | ||||
________________________________________________________________ | ||||
________________________________________________________________ | ||||
UNLESS YOU DIRECT OTHERWISE 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 [ |
||||
power of attorney is not effective as to a third party until the | ||||
third party receives actual notice of the termination | ||||
[ |
||||
that arise against the third party because of reliance on this power | ||||
of attorney. | ||||
If any agent named by me dies, becomes legally disabled, | ||||
resigns, or refuses to act, I name the following (each to act alone | ||||
and successively, in the order named) as successor(s) to that | ||||
agent: __________. | ||||
Signed this ______ day of __________, _____________ | ||||
___________________________ | ||||
(your signature) | ||||
State of _______________________ | ||||
County of ______________________ | ||||
This document was acknowledged before me on ____________(date) by | ||||
________________________ | ||||
(name of principal) | ||||
___________________________ | ||||
(signature of notarial | ||||
officer) | ||||
(Seal, if any, of notary) ______________________________________ | ||||
(printed name) | ||||
My commission expires: __________ | ||||
IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT) | ||||
Agent's Duties | ||||
When you accept the authority granted under this power of | ||||
attorney, you establish a "fiduciary" relationship with the | ||||
principal. This is a special legal relationship that imposes on | ||||
you legal duties that continue until you resign or the power of | ||||
attorney is terminated or revoked by the principal or by operation | ||||
of law. A fiduciary duty generally includes the duty to: | ||||
(1) act in good faith; | ||||
(2) do nothing beyond the authority granted in this | ||||
power of attorney; | ||||
(3) act loyally for the principal's benefit; | ||||
(4) avoid conflicts that would impair your ability to | ||||
act in the principal's best interest; and | ||||
(5) disclose your identity as an agent or attorney in | ||||
fact when you act for the principal by writing or printing the name | ||||
of the principal and signing your own name as "agent" or "attorney | ||||
in fact" in the following manner: | ||||
(Principal's Name) by (Your Signature) as Agent (or as | ||||
Attorney in Fact) | ||||
In addition, the Durable Power of Attorney Act (Subtitle P, | ||||
Title 2, Estates Code) requires you to: | ||||
(1) maintain records of each action taken or decision | ||||
made on behalf of the principal; | ||||
(2) maintain all records until delivered to the | ||||
principal, released by the principal, or discharged by a court; and | ||||
(3) if requested by the principal, provide an | ||||
accounting to the principal that, unless otherwise directed by the | ||||
principal or otherwise provided in the Special Instructions, must | ||||
include: | ||||
(A) the property belonging to the principal that | ||||
has come to your knowledge or into your possession; | ||||
(B) each action taken or decision made by you as | ||||
agent or attorney in fact; | ||||
(C) a complete account of receipts, | ||||
disbursements, and other actions of you as agent or attorney in fact | ||||
that includes the source and nature of each receipt, disbursement, | ||||
or action, with receipts of principal and income shown separately; | ||||
(D) a listing of all property over which you have | ||||
exercised control that includes an adequate description of each | ||||
asset and the asset's current value, if known to you; | ||||
(E) the cash balance on hand and the name and | ||||
location of the depository at which the cash balance is kept; | ||||
(F) each known liability; | ||||
(G) any other information and facts known to you | ||||
as necessary for a full and definite understanding of the exact | ||||
condition of the property belonging to the principal; and | ||||
(H) all documentation regarding the principal's | ||||
property. | ||||
Termination of Agent's Authority | ||||
You must stop acting on behalf of the principal if you learn | ||||
of any event that terminates this power of attorney or your | ||||
authority under this power of attorney. An event that terminates | ||||
this power of attorney or your authority to act under this power of | ||||
attorney includes: | ||||
(1) the principal's death; | ||||
(2) the principal's revocation of this power of | ||||
attorney or your authority; | ||||
(3) the occurrence of a termination event stated in | ||||
this power of attorney; | ||||
(4) if you are married to the principal, the | ||||
dissolution of your marriage by court decree of divorce or | ||||
annulment; | ||||
(5) the appointment and qualification of a permanent | ||||
guardian of the principal's estate; or | ||||
(6) if ordered by a court, the suspension of this power | ||||
of attorney on the appointment and qualification of a temporary | ||||
guardian until the date the term of the temporary guardian expires. | ||||
Liability of Agent | ||||
The authority granted to you under this power of attorney is | ||||
specified in the Durable Power of Attorney Act (Subtitle P, Title 2, | ||||
Estates Code). If you violate the Durable Power of Attorney Act or | ||||
act beyond the authority granted, you may be liable for any damages | ||||
caused by the violation or subject to prosecution for | ||||
misapplication of property by a fiduciary under Chapter 32 of the | ||||
Texas Penal Code. | ||||
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER | ||||
THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL | ||||
RESPONSIBILITIES OF AN AGENT. | ||||
SECTION 1.12. 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 751.201 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 such power.) | ||||
( ) Create, amend, revoke, or terminate an inter vivos | ||||
trust | ||||
( ) Make a gift, subject to the limitations of Section | ||||
751.202, the Durable Power of Attorney Act, 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 | ||||
( ) Waive the principal's right to be a beneficiary of a | ||||
joint and survivor annuity, including a survivor benefit under a | ||||
retirement plan". | ||||
SECTION 1.13. 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 attorney in fact | ||||
or agent, without further reference to a 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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[ |
||||
|
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[ |
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|
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[ |
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|
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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; [ |
||||
(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 towards 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 therein; | ||||
(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; and | ||||
(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, regardless of whether the action is now 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, 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 thereof on behalf of the | ||||
principal; 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 the principal's spouse's | ||||
homestead. | ||||
SECTION 1.14. Section 752.108(b), Estates Code, is amended | ||||
to read as follows: | ||||
(b) Unless the principal has expressly granted the | ||||
authority to create or change a beneficiary designation under | ||||
Section 751.201(a)(4), an [ |
||||
named a beneficiary of an insurance contract or an extension, | ||||
renewal, or substitute for the contract only to the extent the | ||||
attorney in fact or agent was named as a beneficiary under a | ||||
contract procured by the principal before executing the power of | ||||
attorney. | ||||
SECTION 1.15. 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 attorney in fact or agent 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 | ||||
attorney in fact or agent to: | ||||
(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 attorney in fact or agent considers desirable | ||||
to accomplish a lawful purpose; [ |
||||
(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; and | ||||
(7) subject to the needs of the individuals described | ||||
by Subdivision (1), provide for the reasonable care of the | ||||
principal's pets. | ||||
SECTION 1.16. Section 752.113(c), Estates Code, is amended | ||||
to read as follows: | ||||
(c) Unless the principal has expressly granted the | ||||
authority to create or change a beneficiary designation under | ||||
Section 751.201(a)(4), an [ |
||||
named a beneficiary under a retirement plan only to the extent the | ||||
attorney in fact or agent was a named beneficiary under the | ||||
retirement plan before the durable power of attorney was executed. | ||||
SECTION 1.17. The changes in law made by this Act to | ||||
Subchapters B, C, and D, Chapter 751, Estates Code, and by | ||||
Subchapter E, Chapter 751, Estates Code, as added by this Act, apply | ||||
to a durable power of attorney, including a statutory durable power | ||||
of attorney, executed on or after the effective date of this Act. A | ||||
durable power of attorney, including a statutory durable power of | ||||
attorney executed before the effective date of this Act, is | ||||
governed by the law as it existed on the date the durable power of | ||||
attorney was executed, and the former law is continued in effect for | ||||
that purpose. | ||||
SECTION 1.18. (a) Except as otherwise provided by this Act, | ||||
this Act applies to: | ||||
(1) a durable power of attorney created before, on, or | ||||
after the effective date of this Act; | ||||
(2) a judicial proceeding concerning a durable power | ||||
of attorney commenced on or after the effective date of this Act; | ||||
and | ||||
(3) a judicial proceeding concerning a durable power | ||||
of attorney commenced before the effective date of this Act that is | ||||
pending. | ||||
(b) 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 applies in those circumstances. | ||||
(c) An act performed before the effective date of this Act | ||||
is not affected by this Act. | ||||
(d) Section 751.012, Estates Code, as added by this Act, | ||||
applies to a durable power of attorney executed on or after the | ||||
effective date of this Act. | ||||
SECTION 1.19. The following sections of Title 2, 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 | ||||
ARTICLE 2. ADVANCE DIRECTIVES | ||||
SECTION 2.01. Sections 166.002(4) and (8), Health and | ||||
Safety Code, are amended to read as follows: | ||||
(4) "Competent" means possessing the ability, based on | ||||
the attending physician's opinion [ |
||||
to understand and appreciate the nature and consequences of a | ||||
treatment decision, including the significant benefits and harms of | ||||
and reasonable alternatives to a proposed treatment decision. | ||||
(8) "Incompetent" means lacking the ability, based on | ||||
the attending physician's opinion [ |
||||
to understand and appreciate the nature and consequences of a | ||||
treatment decision, including the significant benefits and harms of | ||||
and reasonable alternatives to a proposed treatment decision. | ||||
SECTION 2.02. Section 166.003, Health and Safety Code, is | ||||
amended to read as follows: | ||||
Sec. 166.003. WITNESSES. In any circumstance in which this | ||||
chapter requires the execution of an advance directive or the | ||||
issuance of a nonwritten advance directive to be witnessed: | ||||
(1) each witness must be a competent adult; and | ||||
(2) at least one of the witnesses must be a person who | ||||
is not: | ||||
(A) a person designated by the declarant to make | ||||
a treatment decision; | ||||
(B) a person related to the declarant by blood or | ||||
marriage; | ||||
(C) a person entitled to any part of the | ||||
declarant's estate after the declarant's death under a will or | ||||
codicil executed by the declarant or by operation of law; | ||||
(D) the attending physician; | ||||
(E) an employee of the attending physician; | ||||
(F) an owner, operator, or employee of a health | ||||
care facility in which the declarant is a patient [ |
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(G) a person who, at the time the written advance | ||||
directive is executed or, if the directive is a nonwritten | ||||
directive issued under this chapter, at the time the nonwritten | ||||
directive is issued, has a claim against any part of the declarant's | ||||
estate after the declarant's death. | ||||
SECTION 2.03. Section 166.033, Health and Safety Code, is | ||||
amended to read as follows: | ||||
Sec. 166.033. FORM OF WRITTEN DIRECTIVE. A written | ||||
directive may be in the following form: | ||||
DIRECTIVE TO PHYSICIANS AND FAMILY OR SURROGATES | ||||
Instructions for completing this document: | ||||
This is an important legal document known as an Advance | ||||
Directive. It is designed to help you communicate your wishes about | ||||
medical treatment at some time in the future when you are unable to | ||||
make your wishes known because of illness or injury. These wishes | ||||
are usually based on personal values. In particular, you may want | ||||
to consider what burdens or hardships of treatment you would be | ||||
willing to accept for a particular amount of benefit obtained if you | ||||
were seriously ill. | ||||
You are encouraged to discuss your values and wishes with | ||||
your family or chosen spokesperson, as well as your physician. Your | ||||
physician, other health care provider, or medical institution may | ||||
provide you with various resources to assist you in completing your | ||||
advance directive. Brief definitions are listed below and may aid | ||||
you in your discussions and advance planning. Initial the | ||||
treatment choices that best reflect your personal preferences. | ||||
Provide a copy of your directive to your physician, usual hospital, | ||||
and family or spokesperson. Consider a periodic review of this | ||||
document. By periodic review, you can best assure that the | ||||
directive reflects your preferences. | ||||
In addition to this advance directive, Texas law provides for | ||||
two other types of directives that can be important during a serious | ||||
illness. These are the Medical Power of Attorney and the | ||||
Out-of-Hospital Do-Not-Resuscitate Order. You may wish to discuss | ||||
these with your physician, family, hospital representative, or | ||||
other advisers. You may also wish to complete a directive related | ||||
to the donation of organs and tissues. | ||||
DIRECTIVE | ||||
I, __________, recognize that the best health care is based | ||||
upon a partnership of trust and communication with my physician. My | ||||
physician and I will make health care decisions together as long as | ||||
I am of sound mind and able to make my wishes known. If there comes | ||||
a time that I am unable to make medical decisions about myself | ||||
because of illness or injury, I direct that the following treatment | ||||
preferences be honored: | ||||
If, in the judgment of my physician, I am suffering with a | ||||
terminal condition from which I am expected to die within six | ||||
months, even with available life-sustaining treatment provided in | ||||
accordance with prevailing standards of medical care: | ||||
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If, in the judgment of my physician, I am suffering with an | ||||
irreversible condition so that I cannot care for myself or make | ||||
decisions for myself and am expected to die without life-sustaining | ||||
treatment provided in accordance with prevailing standards of care: | ||||
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Additional requests: (After discussion with your physician, | ||||
you may wish to consider listing particular treatments in this | ||||
space that you do or do not want in specific circumstances, such as | ||||
artificial nutrition and fluids, intravenous antibiotics, etc. Be | ||||
sure to state whether you do or do not want the particular | ||||
treatment.) | ||||
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After signing this directive, if my representative or I elect | ||||
hospice care, I understand and agree that only those treatments | ||||
needed to keep me comfortable would be provided and I would not be | ||||
given available life-sustaining treatments. | ||||
If I do not have a Medical Power of Attorney, and I am unable | ||||
to make my wishes known, I designate the following person(s) to make | ||||
treatment decisions with my physician compatible with my personal | ||||
values: | ||||
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(If a Medical Power of Attorney has been executed, then an | ||||
agent already has been named and you should not list additional | ||||
names in this document.) | ||||
If the above persons are not available, or if I have not | ||||
designated a spokesperson, I understand that a spokesperson will be | ||||
chosen for me following standards specified in the laws of Texas. | ||||
If, in the judgment of my physician, my death is imminent within | ||||
minutes to hours, even with the use of all available medical | ||||
treatment provided within the prevailing standard of care, I | ||||
acknowledge that all treatments may be withheld or removed except | ||||
those needed to maintain my comfort. I understand that under Texas | ||||
law this directive has no effect if I have been diagnosed as | ||||
pregnant. This directive will remain in effect until I revoke it. | ||||
No other person may do so. | ||||
Signed__________ Date__________ City, County, State of | ||||
Residence __________ | ||||
Either a notary public or two [ |
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must sign below, acknowledging the signature of the declarant. If | ||||
this instrument is acknowledged before two witnesses, the [ |
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witness designated as Witness 1 may not be a person designated to | ||||
make a treatment decision for the patient and may not be related to | ||||
the patient by blood or marriage. This witness may not be entitled | ||||
to any part of the estate and may not have a claim against the estate | ||||
of the patient. This witness may not be the attending physician or | ||||
an employee of the attending physician. [ |
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director, partner, or business office employee of a health care | ||||
facility in which the patient is being cared for or of any parent | ||||
organization of the health care facility. | ||||
SIGNATURE ACKNOWLEDGED BEFORE NOTARY | ||||
State of Texas | ||||
County of__________________ | ||||
This instrument was acknowledged before me on _________________ | ||||
(date) by _____________________ (name of person acknowledging). | ||||
____________________ | ||||
NOTARY PUBLIC, State of | ||||
Texas | ||||
Notary's printed name: | ||||
____________________ | ||||
My commission expires: | ||||
____________________ | ||||
OR | ||||
SIGNATURE IN PRESENCE OF TWO COMPETENT ADULT WITNESSES | ||||
Witness 1 __________ Witness 2 __________ | ||||
Definitions: | ||||
"Artificial nutrition and hydration" means the provision of | ||||
nutrients or fluids by a tube inserted in a vein, under the skin in | ||||
the subcutaneous tissues, or in the stomach (gastrointestinal | ||||
tract). | ||||
"Irreversible condition" means a condition, injury, or | ||||
illness: | ||||
(1) that may be treated, but is never cured or | ||||
eliminated; | ||||
(2) that leaves a person unable to care for or make | ||||
decisions for the person's own self; and | ||||
(3) that, without life-sustaining treatment provided | ||||
in accordance with the prevailing standard of medical care, is | ||||
fatal. | ||||
Explanation: Many serious illnesses such as cancer, failure | ||||
of major organs (kidney, heart, liver, or lung), and serious brain | ||||
disease such as Alzheimer's dementia may be considered irreversible | ||||
early on. There is no cure, but the patient may be kept alive for | ||||
prolonged periods of time if the patient receives life-sustaining | ||||
treatments. Late in the course of the same illness, the disease may | ||||
be considered terminal when, even with treatment, the patient is | ||||
expected to die. You may wish to consider which burdens of | ||||
treatment you would be willing to accept in an effort to achieve a | ||||
particular outcome. This is a very personal decision that you may | ||||
wish to discuss with your physician, family, or other important | ||||
persons in your life. | ||||
"Life-sustaining treatment" means treatment that, based on | ||||
reasonable medical judgment, sustains the life of a patient and | ||||
without which the patient will die. The term includes both | ||||
life-sustaining medications and artificial life support such as | ||||
mechanical breathing machines, kidney dialysis treatment, and | ||||
artificial hydration and nutrition. The term does not include the | ||||
administration of pain management medication, the performance of a | ||||
medical procedure necessary to provide comfort care, or any other | ||||
medical care provided to alleviate a patient's pain. | ||||
"Terminal condition" means an incurable condition caused by | ||||
injury, disease, or illness that according to reasonable medical | ||||
judgment will produce death within six months, even with available | ||||
life-sustaining treatment provided in accordance with the | ||||
prevailing standard of medical care. | ||||
Explanation: Many serious illnesses may be considered | ||||
irreversible early in the course of the illness, but they may not be | ||||
considered terminal until the disease is fairly advanced. In | ||||
thinking about terminal illness and its treatment, you again may | ||||
wish to consider the relative benefits and burdens of treatment and | ||||
discuss your wishes with your physician, family, or other important | ||||
persons in your life. | ||||
SECTION 2.04. Sections 166.152(b) and (g), Health and | ||||
Safety Code, are amended to read as follows: | ||||
(b) An agent may exercise authority only when, in the | ||||
opinion of the principal's attending physician, the principal is | ||||
incompetent or unable to make and communicate a choice about a | ||||
specific health care decision [ |
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(g) The power of attorney is effective indefinitely on | ||||
execution as provided by this subchapter and delivery of the | ||||
document to the agent, unless it is revoked as provided by this | ||||
subchapter [ |
||||
power of attorney includes an expiration date and on that date the | ||||
principal is incompetent or unable to make and communicate a health | ||||
care decision, the power of attorney continues to be effective | ||||
until the principal becomes competent and capable of making and | ||||
communicating a health care decision, unless it is revoked as | ||||
provided by this subchapter. | ||||
SECTION 2.05. Subchapter D, Chapter 166, Health and Safety | ||||
Code, is amended by adding Section 166.1525 to read as follows: | ||||
Sec. 166.1525. DESIGNATION OF CO-AGENTS. A medical power | ||||
of attorney may provide for co-agents. Unless the medical power of | ||||
attorney provides otherwise, each co-agent is authorized by the | ||||
principal to act independently, and third parties may rely on the | ||||
decisions of any co-agent. | ||||
SECTION 2.06. Section 166.155, Health and Safety Code, is | ||||
amended to read as follows: | ||||
Sec. 166.155. REVOCATION; EFFECT OF DIVORCE. (a) A medical | ||||
power of attorney is revoked by: | ||||
(1) oral or written notification at any time by the | ||||
principal to the agent or a licensed or certified health or | ||||
residential care provider or by any other act evidencing a specific | ||||
intent to revoke the power, without regard to whether the principal | ||||
is competent or the principal's mental state; or | ||||
(2) execution by the principal of a subsequent medical | ||||
power of attorney. [ |
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(b) Divorce [ |
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revokes any designation in a medical power of attorney of the | ||||
divorced [ |
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unless the medical power of attorney specifically provides | ||||
otherwise. Divorce does not revoke the designation of other agents | ||||
listed in the medical power of attorney. | ||||
(c) [ |
||||
residential care provider who is informed of or provided with a | ||||
revocation of a medical power of attorney or revocation of the | ||||
designation of a divorced spouse as an agent shall immediately | ||||
record the revocation in the principal's medical record and give | ||||
notice of the revocation to the agent and any known health and | ||||
residential care providers currently responsible for the | ||||
principal's care. | ||||
SECTION 2.07. Subchapter D, Chapter 166, Health and Safety | ||||
Code, is amended by adding Section 166.1625 to read as follows: | ||||
Sec. 166.1625. PERMISSIBLE FORMS OF MEDICAL POWER OF | ||||
ATTORNEY. (a) A medical power of attorney may be in the form | ||||
described by Section 166.164 or may be in another form that meets | ||||
the requirements of this subchapter or that is authorized under | ||||
Section 166.005. An example alternative form is the health care | ||||
power of attorney form produced by the Commission on Law and Aging, | ||||
American Bar Association, which may be accessible on the American | ||||
Bar Association's Internet website. | ||||
(b) A durable power of attorney or similar document executed | ||||
by a veteran of the United States armed forces that is in compliance | ||||
with the advance directive requirements of the United States | ||||
Department of Veterans Affairs is valid and enforceable in this | ||||
state. This subsection does not authorize the administration, | ||||
withholding, or withdrawal of health care otherwise prohibited by | ||||
the laws of this state. | ||||
SECTION 2.08. Section 166.164, Health and Safety Code, is | ||||
amended to read as follows: | ||||
Sec. 166.164. FORM OF MEDICAL POWER OF ATTORNEY. The | ||||
medical power of attorney may [ |
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following form: | ||||
MEDICAL POWER OF ATTORNEY DESIGNATION OF HEALTH CARE AGENT. | ||||
I, __________ (insert your name) appoint: | ||||
Name:___________________________________________________________ | ||||
Address:________________________________________________________ | ||||
Phone___________________________________________________________ | ||||
as my agent to make any and all health care decisions for me, | ||||
except to the extent I state otherwise in this document. This | ||||
medical power of attorney is effective only when, in the opinion of | ||||
my attending physician, I am incompetent or I am unable to make and | ||||
communicate a choice about a particular health care decision [ |
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LIMITATIONS ON THE DECISION-MAKING AUTHORITY OF MY AGENT ARE | ||||
AS FOLLOWS:_____________________________________________________ | ||||
________________________________________________________________ | ||||
DESIGNATION OF ALTERNATE AGENT. | ||||
(You are not required to designate an alternate agent but you | ||||
may do so. An alternate agent may make the same health care | ||||
decisions as the designated agent if the designated agent is unable | ||||
or unwilling to act as your agent. If the agent designated is your | ||||
spouse, the designation of that spouse is automatically revoked by | ||||
law if your marriage is dissolved unless this document provides | ||||
otherwise, but the remainder of this document is valid.) | ||||
If the person designated as my agent is unable or unwilling to | ||||
make health care decisions for me, I designate the following | ||||
persons to serve as my agent to make health care decisions for me as | ||||
authorized by this document, who serve in the following order: | ||||
A. First Alternate Agent | ||||
Name:________________________________________________ | ||||
Address:_____________________________________________ | ||||
Phone __________________________________________ | ||||
B. Second Alternate Agent | ||||
Name:________________________________________________ | ||||
Address:_____________________________________________ | ||||
Phone __________________________________________ | ||||
I intend to keep the [ |
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_____________________________________________________ | ||||
_____________________________________________________ | ||||
_____________________________________________________ | ||||
I intend for the [ |
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institutions to have signed copies: | ||||
Name:________________________________________________ | ||||
Address:_____________________________________________ | ||||
_____________________________________________________ | ||||
Name:________________________________________________ | ||||
Address:_____________________________________________ | ||||
_____________________________________________________ | ||||
DURATION. | ||||
I understand that this power of attorney exists indefinitely | ||||
from the date I execute this document unless I establish a shorter | ||||
time or revoke the power of attorney. | ||||
(IF A SPECIFIC TERMINATION DATE IS SELECTED) This power of | ||||
attorney ends on the following date: . | ||||
If I am incompetent or unable to make and communicate health | ||||
care decisions for myself when this power of attorney expires, the | ||||
authority I have granted my agent continues to exist until the time | ||||
I become able to make and communicate health care decisions for | ||||
myself. | ||||
[ |
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PRIOR DESIGNATIONS REVOKED. | ||||
I revoke any prior medical power of attorney. | ||||
INFORMATION CONCERNING THE MEDICAL POWER OF ATTORNEY | ||||
The medical power of attorney is an important legal document. | ||||
Before signing this document, you should know these important | ||||
facts: | ||||
Except to the extent you state otherwise or as provided by | ||||
Texas law, this document gives the person you name as your agent the | ||||
authority to make any and all health care decisions for you in | ||||
accordance with your wishes, including your religious and moral | ||||
beliefs, when you are no longer capable of making them yourself. | ||||
Because "health care" means any treatment, service, or | ||||
procedure to maintain, diagnose, or treat your physical or mental | ||||
condition, your agent has the power to make a broad range of health | ||||
care decisions for you. Your agent may consent, refuse to consent, | ||||
or withdraw consent to medical treatment and may make decisions | ||||
about withdrawing or withholding life-sustaining treatment. Your | ||||
agent may not consent to voluntary inpatient mental health | ||||
services, convulsive treatment, psychosurgery, or abortion. | ||||
A physician must comply with your agent's instructions or | ||||
allow you to be transferred to another physician. | ||||
Your agent's authority is effective when, in your doctor's | ||||
opinion, you are incompetent or you are unable to make and | ||||
communicate a choice about a particular health care decision. | ||||
Your agent is obligated to follow your instructions when | ||||
making decisions on your behalf. Unless you state otherwise, your | ||||
agent, when making decisions about your health care, has the same | ||||
authority to make those decisions as you would have if you were | ||||
competent or able to communicate. | ||||
It is important that you discuss your medical power of | ||||
attorney with your physician or other health care provider. Before | ||||
you sign any medical power of attorney, make sure that you | ||||
understand the nature and range of decisions that may be made on | ||||
your behalf. If you do not have a physician, you should talk with | ||||
someone else who is knowledgeable about these issues and can answer | ||||
your questions. You do not need a lawyer's assistance to complete | ||||
this document, but if there is anything in this document that you do | ||||
not understand, you should ask a lawyer to explain it to you. | ||||
The person you appoint as agent should be someone you know and | ||||
trust. The person must be 18 years of age or older or a person under | ||||
18 years of age who has had the disabilities of minority removed. | ||||
If you appoint your health or residential care provider (e.g., your | ||||
physician or an employee of a home health agency, hospital, nursing | ||||
home, or residential care home, other than a relative), that person | ||||
has to choose between acting as your agent or as your health or | ||||
residential care provider; the law does not permit a person to do | ||||
both at the same time. | ||||
You should inform the person you appoint that you want the | ||||
person to be your health care agent. You should discuss your | ||||
medical power of attorney with your agent and your physician and | ||||
give each a signed copy. You may indicate on the document itself | ||||
the people and institutions that you intend to have signed copies. | ||||
Your agent is not liable for health care decisions made in good | ||||
faith on your behalf. | ||||
After you have signed your medical power of attorney, you | ||||
retain the right to make health care decisions for yourself as long | ||||
as you are competent and can communicate your health care | ||||
decisions, and treatment cannot be given to you or stopped over your | ||||
objection. You have the right to revoke the authority granted to | ||||
your agent by informing your agent or your health or residential | ||||
care provider orally or in writing or by your execution of a | ||||
subsequent medical power of attorney. Unless you state otherwise, | ||||
your appointment of a spouse dissolves on divorce. | ||||
A signed medical power of attorney may not be changed or | ||||
modified. If you want to make changes in a medical power of | ||||
attorney, you must execute a new medical power of attorney. | ||||
You may wish to designate an alternate agent in the event that | ||||
your agent is unwilling, unable, or ineligible to act as your agent. | ||||
Any alternate agent you designate has the same authority as the | ||||
agent to make health care decisions for you. | ||||
You may wish to provide for co-agents to serve. Unless your | ||||
medical power of attorney states differently, each co-agent is | ||||
authorized to act independently and third parties may rely on the | ||||
decisions of either co-agent. | ||||
THE FOLLOWING PERSONS MAY NOT ACT AS ONE OF THE WITNESSES: | ||||
(1) the person you have designated as your agent; | ||||
(2) a person related to you by blood or marriage; | ||||
(3) a person entitled to any part of your estate after | ||||
your death under a will or codicil executed by you or by operation | ||||
of law; | ||||
(4) your attending physician; | ||||
(5) an employee of your attending physician; | ||||
(6) an owner, operator, or employee of a health care | ||||
facility in which you are a patient; or | ||||
(7) a person who, at the time this medical power of | ||||
attorney is executed, has a claim against any part of your estate | ||||
after your death. | ||||
[ |
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(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY. YOU MAY SIGN | ||||
IT AND HAVE YOUR SIGNATURE ACKNOWLEDGED BEFORE A NOTARY PUBLIC OR | ||||
YOU MAY SIGN IT IN THE PRESENCE OF TWO COMPETENT ADULT WITNESSES.) | ||||
SIGNATURE ACKNOWLEDGED BEFORE NOTARY | ||||
I sign my name to this medical power of attorney on __________ | ||||
day of __________ (month, year) at | ||||
_____________________________________________ | ||||
(City and State) | ||||
_____________________________________________ | ||||
(Signature) | ||||
_____________________________________________ | ||||
(Print Name) | ||||
State of Texas | ||||
County of ________ | ||||
This instrument was acknowledged before me on __________ (date) by | ||||
________________ (name of person acknowledging). | ||||
_____________________________ | ||||
NOTARY PUBLIC, State of Texas | ||||
Notary's printed name: | ||||
_____________________________ | ||||
My commission expires: | ||||
_____________________________ | ||||
OR | ||||
SIGNATURE IN PRESENCE OF TWO COMPETENT ADULT WITNESSES | ||||
I sign my name to this medical power of attorney on __________ | ||||
day of __________ (month, year) at | ||||
_____________________________________________ | ||||
(City and State) | ||||
_____________________________________________ | ||||
(Signature) | ||||
_____________________________________________ | ||||
(Print Name) | ||||
STATEMENT OF FIRST WITNESS. | ||||
I am not the person appointed as agent by this document. I am | ||||
not related to the principal by blood or marriage. I would not be | ||||
entitled to any portion of the principal's estate on the principal's | ||||
death. I am not the attending physician of the principal or an | ||||
employee of the attending physician. I have no claim against any | ||||
portion of the principal's estate on the principal's | ||||
death. [ |
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of a health care facility in which the principal is a patient[ |
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Signature:________________________________________________ | ||||
Print Name:___________________________________ Date:______ | ||||
Address:__________________________________________________ | ||||
SIGNATURE OF SECOND WITNESS. | ||||
Signature:________________________________________________ | ||||
Print Name:___________________________________ Date:______ | ||||
Address:__________________________________________________ | ||||
SECTION 2.09. Sections 166.162 and 166.163, Health and | ||||
Safety Code, are repealed. | ||||
SECTION 2.10. The changes in law made by this article apply | ||||
only to the validity of a document executed on or after the | ||||
effective date of this Act. The validity of a document executed | ||||
before the effective date of this Act is governed by the law in | ||||
effect on the date the document was executed, and that law continues | ||||
in effect for that purpose. | ||||
SECTION 2.11. (a) Except as otherwise provided in this | ||||
section, the changes in law made by this article to the Health and | ||||
Safety Code apply to: | ||||
(1) a medical power of attorney created before, on, or | ||||
after the effective date of this Act; and | ||||
(2) a judicial proceeding concerning a medical power | ||||
of attorney that: | ||||
(A) commences on or after the effective date of | ||||
this Act; or | ||||
(B) is pending on the effective date of this Act. | ||||
(b) If the court finds that application of a provision of | ||||
this article would substantially interfere with the effective | ||||
conduct of a judicial proceeding concerning a medical power of | ||||
attorney that is pending on the effective date of this Act or | ||||
prejudice the rights of a party to the proceeding, the provision of | ||||
this article does not apply, and the law in effect immediately | ||||
before the effective date of this Act applies in those | ||||
circumstances. | ||||
ARTICLE 3. EFFECTIVE DATE | ||||
SECTION 3.01. This Act takes effect September 1, 2015. |