Bill Text: TX HB3095 | 2015-2016 | 84th Legislature | Comm Sub

Texas House Bill 3095 (Prior Session Legislation)

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-Comm_Sub.html

	84R27528 CLG/SCL-F

	By: Thompson of Harris	H.B. No. 3095

	Substitute the following for H.B. No. 3095:

	By: Thompson of Harris	C.S.H.B. No. 3095

A BILL TO BE ENTITLED

AN ACT

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. Subchapter A, Chapter 751, Estates Code, is

amended by adding Section 751.0015 to read as follows:

Sec. 751.0015. APPLICABILITY. 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 that power, including a power of

attorney given to or for the benefit of a creditor in connection

with a credit transaction;

(2) a proxy or other delegation to exercise voting

rights or management rights with respect to an entity; or

(3) a power of attorney created on a form prescribed by

a government or governmental subdivision, agency, or

instrumentality for a governmental purpose.

SECTION 1.02. Section 751.002, Estates Code, is amended to

read as follows:

Sec. 751.002. DEFINITIONS [~~DEFINITION~~] OF DURABLE POWER OF

ATTORNEY AND AGENT. (a) A "durable power of attorney" means a

written instrument that:

(1) designates another person as [~~attorney in fact or~~]

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.

in fact."

SECTION 1.03. Subchapter A, Chapter 751, Estates Code, is

amended by adding Sections 751.007, 751.008, 751.009, 751.010,

751.011, 751.012, and 751.013 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.

subtitle, 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 by a person who is

requested to accept the durable power of attorney, without

liability, to the same extent 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:

(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. 751.010. 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 for declaratory relief to

construe the durable power of attorney.

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. 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. 751.012. 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, the

co-agents must act jointly.

(b) A principal may designate one or more successor agents

to act if an agent resigns, dies, or 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 to the successor agent have

resigned, died, or become incapacitated, are not or are no longer

qualified to serve, or have declined to serve.

more successor agents for a specified co-agent:

(1) the authority granted to a successor agent is the

same as the authority granted to the predecessor co-agent whom the

successor agent is designated to succeed; and

(2) the specified co-agent is considered an agent

under this subtitle and may act in that capacity only when the

predecessor co-agent whom the successor agent is designated to

succeed has died, becomes incapacitated, resigns, is not or is no

longer qualified to serve, or has declined to serve.

(d) Except as otherwise provided by Subsection (e) 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.

(e) 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. 751.013. REIMBURSEMENT AND COMPENSATION OF AGENT.

Unless the durable power of attorney otherwise provides or is in

conflict with another agreement or instrument, 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 1.04. 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 1.05. Section 751.051, Estates Code, is amended to

read as follows:

Sec. 751.051. EFFECT OF ACTS PERFORMED BY [~~ATTORNEY IN FACT~~

OR] AGENT [~~DURING PRINCIPAL'S DISABILITY OR INCAPACITY~~]. An [~~Each~~]

act performed by an [~~attorney in fact or~~] agent under a durable

power of attorney [~~during a period of the principal's disability or~~

~~incapacity~~] has the same effect[,] and inures to the benefit of and

binds the principal and the principal's successors in interest[,]

as if the principal had performed the act [~~were not disabled or~~

~~incapacitated~~].

SECTION 1.06. Section 751.052, Estates Code, is amended to

read as follows:

Sec. 751.052. RELATION OF [~~ATTORNEY IN FACT OR~~] 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 [~~attorney in fact or~~] agent terminate on the

qualification of the guardian of the estate. The [~~attorney in fact~~

or] agent shall:

(1) deliver to the guardian of the estate all assets of

the ward's estate that are in the possession of the [~~attorney in~~

~~fact or~~] agent; and

(2) account to the guardian of the estate as the

[~~attorney in fact or~~] agent would account to the principal if the

principal had terminated the powers of the [~~attorney in fact or~~]

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

[~~attorney in fact or~~] agent on the qualification of the temporary

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 1.07. 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 [~~attorney in fact or~~] agent.

(b) Any act the [~~attorney in fact or~~] agent may undertake

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 1.08. 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;

(6) a permanent guardian of the estate of the

principal has qualified to serve in that capacity as provided by

Section 751.052; or

(7) the agent's authority is otherwise terminated

under Section 751.062 and the durable power of attorney does not

provide for another agent to act under the durable power of

attorney.

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) 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 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 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 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.

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, which is conclusive proof of the matter;

(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 containing no material

qualifications 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 by the agent at the

agent's own expense unless the request is made not earlier than the

10th business day after the date the power of attorney is presented

for acceptance.

(e) For purposes of this section, 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.

(f) A certification described by Subsection (c) may be in

the following form:

CERTIFICATION OF 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 partially or completely terminated by the

occurrence of any event, whether or not referenced in the power of

attorney;

b. A permanent or temporary guardian of the estate of

the principal has not qualified to serve in that capacity;

c. 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 is

dissolved by court decree of divorce or annulment or is declared

void by a court);

d. No proceeding has been commenced for a temporary or

permanent guardianship of the person or estate, or both, of the

principal; and

e. 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 is

now disabled or 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 or is no longer qualified to serve, has

declined to serve as agent, or is otherwise unable to act. There is

no prior agent remaining under the power of attorney that precludes

my acting as successor agent.

7. I agree not to exercise any powers granted by the power of

attorney if I attain knowledge that the power of attorney has been

revoked, suspended, or partially or completely terminated.

8. A true and correct copy of the power of attorney is

attached to this document.

9. If applicable, the power of attorney was executed in the

law office of ____________________.

Date: __________, 20__.

__________________________________ (signature of agent)

SECTION 1.09. 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 [~~attorney in fact or~~]

agent who accepts appointment as an agent under a durable power of

attorney as provided by Section 751.011 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

[~~attorney in fact or~~] agent shall timely inform the principal of

each action taken under the power of attorney.

(b) Failure of an [~~attorney in fact or~~] agent to timely

inform, as to third parties, does not invalidate any action of the

[~~attorney in fact or~~] agent.

Sec. 751.103. MAINTENANCE OF RECORDS. (a) The [~~attorney~~

~~in fact or~~] agent shall maintain records of each action taken or

decision made by the [~~attorney in fact or~~] agent.

(b) The [~~attorney in fact or~~] agent shall maintain all

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 [~~attorney in fact or~~] agent.

(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 [~~attorney in fact's or~~] agent's knowledge or into the

[~~attorney in fact's or~~] agent's possession;

(2) each action taken or decision made by the

[~~attorney in fact or~~] agent;

(3) a complete account of receipts, disbursements, and

other actions of the [~~attorney in fact or~~] agent that includes

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 [~~attorney~~

~~in fact or~~] agent has exercised control that includes:

(A) an adequate description of each asset; and

(B) the asset's current value, if the value is

known to the [~~attorney in fact or~~] agent;

(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

[~~attorney in fact or~~] agent as necessary for a full and definite

understanding of the exact condition of the property belonging to

the principal.

[~~attorney in fact or~~] agent shall also provide to the principal all

documentation regarding the principal's property.

Sec. 751.105. EFFECT OF FAILURE TO COMPLY; SUIT. If the

[~~attorney in fact or~~] agent fails or refuses to inform the

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 [~~attorney in fact or~~] agent to deliver

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, or

expressly modify the duties or obligations of the [~~attorney in fact~~

or] agent.

SECTION 1.10. 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 1.11. 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; or

(5) delegate authority granted under the power of

attorney.

(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.

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 federal gift tax exclusions for both spouses.

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, and except as

provided by Section 751.201(b), 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).

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.

reference.

SECTION 1.12. 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 MUST ACT JOINTLY.)

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 [~~ABOVE~~], THIS POWER OF

ATTORNEY IS EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT

TERMINATES [~~IS REVOKED~~].

CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE

ALTERNATIVE NOT CHOSEN:

(A) This power of attorney is not affected by my subsequent

disability or incapacity.

(B) This power of attorney becomes effective upon my

disability or incapacity.

YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY

IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.

IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT

YOU CHOSE ALTERNATIVE (A).

If Alternative (B) is chosen and a definition of my

disability or incapacity is not contained in this power of

attorney, I shall be considered disabled or incapacitated for

purposes of this power of attorney if a physician certifies in

writing at a date later than the date this power of attorney is

executed that, based on the physician's medical examination of me,

I am mentally incapable of managing my financial affairs. I

authorize the physician who examines me for this purpose to

disclose my physical or mental condition to another person for

purposes of this power of attorney. A third party who accepts this

power of attorney is fully protected from any action taken under

this power of attorney that is based on the determination made by a

physician of my disability or incapacity.

I agree that any third party who receives a copy of this

document may act under it. Termination [~~Revocation~~] of this [~~the~~]

durable power of attorney is not effective as to a third party until

the third party receives actual notice of the termination

[~~revocation~~]. I agree to indemnify the third party for any claims

that arise against the third party because of reliance on this power

of attorney.

If any agent named by me dies, becomes legally disabled,

resigns, or refuses to act, or if my marriage to an agent named by me

is dissolved by 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 (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;

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 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 ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER

THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL

RESPONSIBILITIES OF AN AGENT.

SECTION 1.13. 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".

SECTION 1.14. 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;

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[~~, by, for example:~~

[~~(i)~~ ~~entering into a lease for oil, gas, and~~

~~mineral purposes;~~

[~~(ii)~~ ~~making contracts for development of~~

~~the mineral estate; or~~

[~~(iii)~~ ~~making pooling and unitization~~

~~agreements~~];

(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

by proxy;

(7) change the form of title of an interest in or right

incident to real property; [~~and~~]

(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;

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 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 property owned by the

principal's spouse in which the principal has a homestead interest.

SECTION 1.15. 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 [An] attorney in fact or agent may be

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 1.16. 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

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; [~~and~~]

(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 1.17. 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 attorney in fact or agent to perform any

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 providing those payments [~~a spouse who is not~~

~~employed~~];

(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.

authority to create or change a beneficiary designation under

Section 751.201(a)(4), an [An] attorney in fact or agent may be

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, or in the case of a rollover or trustee-to-trustee

transfer, the predecessor retirement plan, before the durable power

of attorney was executed.

SECTION 1.18. The changes in law made by this Act to

Subchapters B, C, and D, Chapter 751, Estates Code, and by

Subchapters B-1 and 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 1.19. (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.

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 1.20. 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. 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;

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 [~~if the employee~~

~~is providing direct patient care to the declarant or is an officer,~~

~~director, partner, or business office employee of the health care~~

~~facility or of any parent organization of the health care~~

~~facility~~]; or

(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 2.02. 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:

__________

I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR

__________

I request that I be kept alive in this terminal condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)

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:

__________

I request that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; OR

__________

I request that I be kept alive in this irreversible condition using available life-sustaining treatment. (THIS SELECTION DOES NOT APPLY TO HOSPICE CARE.)

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.)

________________________________________________________________

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:

1. __________

2. __________

(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 [~~Two~~] competent adult witnesses

must sign below, acknowledging the signature of the declarant. If

this instrument is acknowledged before two witnesses, the [~~The~~]

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. [~~If this witness is an~~

~~employee of a health care facility in which the patient is being~~

~~cared for, this witness may not be involved in providing direct~~

~~patient care to the patient.~~] This witness may not be an owner,

operator, [~~officer, director, partner,~~] or [~~business office~~]

employee of a health care facility in which you as the declarant are

a [~~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:

____________________

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 2.03. 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 [~~if the principal's attending~~

~~physician certifies in writing and files the certification in the~~

~~principal's medical record that, based on the attending physician's~~

~~reasonable medical judgment, the principal is incompetent~~].

(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 [~~or the principal becomes competent~~]. If the medical

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 2.04. Section 166.155, Health and Safety Code, is

amended to read as follows:

Sec. 166.155. REVOCATION; EFFECT OF TERMINATION OF

MARRIAGE. (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. [~~; or~~]

(b) An agent's authority under a medical power of attorney

terminates if the agent's marriage to [~~(3) the divorce of~~] the

principal is dissolved, annulled, or declared void [~~and spouse, if~~

~~the spouse is the principal's agent,~~] unless the medical power of

attorney specifically provides otherwise. The authority of other

agents under the medical power of attorney is not terminated.

residential care provider who is informed of or provided with a

revocation of a medical power of attorney or is informed of the

termination of an agent's authority under Subsection (b) shall

immediately record the revocation or termination in the principal's

medical record and give notice of the revocation or termination to

the agent and any known health and residential care providers

currently responsible for the principal's care.

SECTION 2.05. 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 2.06. 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 [~~must~~] be in [~~substantially~~] the

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 [~~takes~~

~~effect if I become unable to make my own health care decisions and~~

~~this fact is certified in writing by my physician~~].

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 terminated

[~~revoked~~] by law if your marriage is dissolved, annulled, or

declared void unless this document provides otherwise, but the

remainder of this document is valid and the authority of other

agents under the document is not terminated.)

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 [~~The~~] original of this document [is

~~kept~~] at:

_____________________________________________________

I intend for the [~~The~~] following individuals or

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.

[~~(IF APPLICABLE)~~ ~~This power of attorney ends on the~~

~~following date: __________~~]

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

in the document, your appointment of a spouse terminates 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.

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.

[~~ACKNOWLEDGMENT OF DISCLOSURE STATEMENT.~~

[~~I have been provided with a disclosure statement explaining~~

~~the effect of this document.~~ ~~I have read and understand that~~

~~information contained in the disclosure statement.~~]

(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:

_____________________________

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. [~~Furthermore, if~~] I am not an owner, operator, or employee

of a health care facility in which the principal is a patient[~~, I am~~

~~not involved in providing direct patient care to the principal and~~

~~am not an officer, director, partner, or business office employee~~

~~of the health care facility or of any parent organization of the~~

~~health care facility~~].

Signature:________________________________________________

Print Name:___________________________________ Date:______

Address:__________________________________________________

SIGNATURE OF SECOND WITNESS.

Signature:________________________________________________

Print Name:___________________________________ Date:______

Address:__________________________________________________

SECTION 2.07. Sections 166.162 and 166.163, Health and

Safety Code, are repealed.

SECTION 2.08. 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 2.09. (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.

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Bill Text: TX HB3095 | 2015-2016 | 84th Legislature | Comm Sub

Texas House Bill 3095 (Prior Session Legislation)

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