CHAPTER XII. DURABLE POWER OF ATTORNEY ACT
PROBATE CODE
CHAPTER XII. DURABLE POWER OF ATTORNEY ACT
Text of effective on January 01, 2014
Text of article effective until January 01, 2014
Sec. 481. SHORT TITLE. This chapter may be cited as the Durable
Power of Attorney Act.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 482. DEFINITION. 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;
(3) contains the words "This power of attorney is not affected by
subsequent disability or incapacity of the principal," or "This
power of attorney becomes effective on the disability or
incapacity of the principal," or similar words showing 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
to take acknowledgments to deeds of conveyance and to administer
oaths under the laws of this state or any other state.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 483. DURATION. A durable power of attorney does not lapse
because of the passage of time unless the instrument creating the
power of attorney specifically states a time limitation.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 484. EFFECT OF ACTS BY ATTORNEY IN FACT OR AGENT DURING
INCAPACITY OF PRINCIPAL. All acts done by an attorney in fact or
agent pursuant to a durable power of attorney during any period
of disability or incapacity of the principal have the same effect
and inure to the benefit of and bind the principal and the
principal's successors in interest as if the principal were not
disabled or incapacitated.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 485. 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, and the attorney in
fact or agent shall deliver to the guardian of the estate all
assets of the estate of the ward in the attorney's or agent's
possession and shall account to the guardian of the estate as the
attorney or agent would to the principal had the principal
terminated his powers.
(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 on which the term of the
temporary guardian expires.
(c) Subsection (b) of this section may not be construed to
prohibit the application for or issuance of a temporary
restraining order under applicable law.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 2001, 77th Leg., ch. 217, Sec. 1, eff.
Sept. 1, 2001.
Text of article effective until January 01, 2014
Sec. 485A. EFFECT OF PRINCIPAL'S DIVORCE OR MARRIAGE ANNULMENT IF
FORMER SPOUSE IS ATTORNEY IN FACT OR AGENT. If, after execution
of a durable power of attorney, the principal is divorced from a
person who has been appointed the principal's attorney in fact or
agent or the principal's marriage to a person who has been
appointed the principal's attorney in fact or agent is annulled,
the powers of the attorney in fact or agent granted to the
principal's former spouse shall terminate on the date on which
the divorce or annulment of marriage is granted by a court,
unless otherwise expressly provided by the durable power of
attorney.
Added by Acts 1997, 75th Leg., ch. 455, Sec. 1, eff. Sept. 1,
1997.
Text of article effective until January 01, 2014
Sec. 486. KNOWLEDGE OF DEATH, GUARDIAN OF ESTATE, REVOCATION,
DIVORCE, OR MARRIAGE ANNULMENT; GOOD-FAITH ACTS. (a) The
revocation by, the death of, or the qualification of a guardian
of the estate of a principal who has executed a durable power of
attorney does not revoke or terminate the agency as to the
attorney in fact, agent, or other person who, without actual
knowledge of the termination of the power by revocation, by the
principal's death, or by the qualification of a guardian of the
estate of the principal, acts in good faith under or in reliance
on the power.
(b) The divorce of a principal from a person who has been
appointed the principal's attorney in fact or agent before the
date on which the divorce is granted or the annulment of the
marriage of a principal and a person who has been appointed the
principal's attorney in fact or agent before the date the
annulment is granted does not revoke or terminate the agency as
to a person other than the principal's former spouse if the
person acts in good faith under or in reliance on the power.
(c) Any action taken under this section, unless otherwise invalid
or unenforceable, binds successors in interest of the principal.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1997, 75th Leg., ch. 455, Sec. 2, eff.
Sept. 1, 1997.
Text of article effective until January 01, 2014
Sec. 487. AFFIDAVIT OF LACK OF KNOWLEDGE OR TERMINATION OF POWER;
RECORDING; GOOD-FAITH RELIANCE. (a) As to acts undertaken in
good-faith reliance on the durable power of attorney, an
affidavit executed by the attorney in fact or agent under a
durable power of attorney stating that the attorney in fact or
agent did not have at the time of exercise of the power actual
knowledge of the termination of the power by revocation, by the
principal's death, by the principal's divorce or the annulment of
the marriage of the principal if the attorney in fact or agent
was the principal's spouse, or by the qualification of a guardian
of the estate of the principal is conclusive proof as between the
attorney in fact or agent and a person other than the principal
or the principal's personal representative dealing with the
attorney in fact or agent of the nonrevocation or nontermination
of the power at that time.
(b) As to acts undertaken in good-faith reliance on the durable
power of attorney, an affidavit executed by the attorney in fact
or agent under a durable power of attorney stating that the
principal is disabled or incapacitated, as defined by the power,
is conclusive proof as between the attorney in fact or agent and
a person other than the principal or the principal's personal
representative dealing with the attorney in fact or agent of the
disability or incapacity of the principal at that time.
(c) If the exercise of the power of attorney requires execution
and delivery of any instrument that is to be recorded, an
affidavit executed under Subsection (a) or (b) of this section,
when authenticated for record, may also be recorded.
(d) This section does not affect any provision in a durable power
of attorney for its termination by expiration of time or
occurrence of an event other than express revocation.
(e) When a durable power of attorney is used, a third party who
relies in good faith on the acts of an attorney in fact or agent
within the scope of the power of attorney is not liable to the
principal.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1997, 75th Leg., ch. 455, Sec. 3, eff.
Sept. 1, 1997.
Text of article effective until January 01, 2014
Sec. 487A. EFFECT OF BANKRUPTCY PROCEEDING. After execution of a
durable power of attorney, the filing of a voluntary or
involuntary petition in bankruptcy in connection with the
principal's debts does not revoke or terminate the agency as to
the principal's attorney in fact or agent. 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 until a final determination is made
in the bankruptcy proceeding.
Added by Acts 2001, 77th Leg., ch. 73, Sec. 1, eff. Sept. 1,
2001.
Text of article effective until January 01, 2014
Sec. 488. REVOCATION OF DURABLE POWER OF ATTORNEY. Unless
otherwise provided by the durable power of attorney, a revocation
of a durable power of attorney is not effective as to a third
party relying on the power of attorney until the third party
receives actual notice of the revocation.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 489. RECORDING DURABLE POWER OF ATTORNEY FOR REAL PROPERTY
TRANSACTIONS. 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, 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, shall be recorded in the office of the county
clerk of the county in which the property is located.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 489B. DUTY TO INFORM AND ACCOUNT. (a) The attorney in fact
or agent is a fiduciary and has a duty to inform and to account
for actions taken pursuant to the power of attorney.
(b) The attorney in fact or agent shall timely inform the
principal of all actions taken pursuant to the power of attorney.
Failure of the attorney in fact or agent to inform timely, as to
third parties, shall not invalidate any action of the attorney in
fact or agent.
(c) The attorney in fact or agent shall maintain records of each
action taken or decision made by the attorney in fact or agent.
(d) The principal may demand an accounting by the attorney in
fact or agent. Unless otherwise directed by the principal, the
accounting shall 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) all actions taken or decisions 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, including their source
and nature, 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, with an adequate description of each
asset and its current value if known to the attorney in fact or
agent;
(5) the cash balance on hand and the name and location of the
depository where the balance is kept;
(6) all known liabilities; and
(7) such other information and facts known to the attorney in
fact or agent as may be necessary to a full and definite
understanding of the exact condition of the property belonging to
the principal.
(e) Unless directed otherwise by the principal, the attorney in
fact or agent shall also provide to the principal all
documentation regarding the principal's property.
(f) The attorney in fact or agent shall maintain all records
until delivered to the principal, released by the principal, or
discharged by a court.
(g) If the attorney in fact or agent fails or refuses to inform
the principal, provide documentation, or deliver the accounting
within 60 days (or such longer or shorter time that the principal
demands or a court may order), the principal may file suit to
compel the attorney in fact or agent to deliver the accounting,
to deliver the assets, or to terminate the power of attorney.
(h) This section shall 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
attorney in fact or agent.
(i) Wherever in this chapter a principal is given an authority to
act, that shall include not only the principal but also any
person designated by the principal, a guardian of the estate of
the principal, or other personal representative of the principal.
(j) The rights set out in this section and chapter are cumulative
of any other rights or remedies the principal may have at common
law or other applicable statutes and not in derogation of those
rights.
Added by Acts 2001, 77th Leg., ch. 1056, Sec. 1, eff. Sept. 1,
2001.
Text of article effective until January 01, 2014
Sec. 490. STATUTORY DURABLE POWER OF ATTORNEY. (a) The following
form is known as a "statutory durable power of attorney." A
person may use a statutory durable power of attorney to grant an
attorney in fact or agent powers with respect to a person's
property and financial matters. A power of attorney in
substantially the following form has the meaning and effect
prescribed by this chapter. The validity of a power of attorney
as meeting the requirements of a statutory durable power of
attorney is not affected by the fact that one or more of the
categories of optional powers listed in the form are struck or
the form includes specific limitations on or additions to the
attorney in fact's or agent's powers.
The following form is not exclusive, and other forms of power of
attorney may be used.
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, CHAPTER XII, TEXAS PROBATE 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.
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 except for a power
that I have crossed out below.
TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER
WITHHELD.
Real property transactions;
Tangible personal property transactions;
Stock and bond transactions;
Commodity and option transactions;
Banking and other financial institution transactions;
Business operating transactions;
Insurance and annuity transactions;
Estate, trust, and other beneficiary transactions;
Claims and litigation;
Personal and family maintenance;
Benefits from social security, Medicare, Medicaid, or other
governmental programs or civil or military service;
Retirement plan transactions;
Tax matters.
IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL BE
CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY
AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO
PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I
WERE PERSONALLY PRESENT.
SPECIAL INSTRUCTIONS:
Special instructions applicable to gifts (initial in front of
the following sentence to have it apply):
I grant my agent (attorney in fact) the power to apply my
property to make gifts, except that the amount of a gift to an
individual may not exceed the amount of annual exclusions allowed
from the federal gift tax for the calendar year of the gift.
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
ALTERNATIVE NOT CHOSEN:
(A) This power of attorney is not affected by my subsequent
disability or incapacity.
(B) This power of attorney becomes effective upon my
disability or incapacity.
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY IS
TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
YOU CHOSE ALTERNATIVE (A).
If Alternative (B) is chosen and a definition of my disability
or incapacity is not contained in this power of attorney, I shall
be considered disabled or incapacitated for purposes of this
power of attorney if a physician certifies in writing at a date
later than the date this power of attorney is executed that,
based on the physician's medical examination of me, I am mentally
incapable of managing my financial affairs. I authorize the
physician who examines me for this purpose to disclose my
physical or mental condition to another person for purposes of
this power of attorney. A third party who accepts this power of
attorney is fully protected from any action taken under this
power of attorney that is based on the determination made by a
physician of my disability or incapacity.
I agree that any third party who receives a copy of this
document may act under it. Revocation of the durable power of
attorney is not effective as to a third party until the third
party receives actual notice of the revocation. I agree to
indemnify the third party for any claims that arise against the
third party because of reliance on this power of attorney.
If any agent named by me dies, becomes legally disabled,
resigns, or refuses to act, I name the following (each to act
alone and successively, in the order named) as successor(s) to
that agent: __________.
Signed this ______ day of __________, 19___
___________________________
(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: _____________
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER THE
APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
RESPONSIBILITIES OF AN AGENT.
(b) A statutory durable power of attorney is legally sufficient
under this chapter if the wording of the form complies
substantially with Subsection (a) of this section, the form is
properly completed, and the signature of the principal is
acknowledged.
(c) Repealed by Acts 1997, 75th Leg., ch. 455, Sec. 7, eff. Sept.
1, 1997.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1997, 75th Leg., ch. 455, Sec. 4, eff.
Sept. 1, 1997; Acts 1997, 75th Leg., ch. 455, Sec. 7, eff. Sept.
1, 1997.
Text of article effective until January 01, 2014
Sec. 491. CONSTRUCTION OF POWERS GENERALLY. The principal, by
executing a statutory durable power of attorney that confers
authority with respect to any class of transactions, empowers the
attorney in fact or agent for that class of transactions to:
(1) demand, receive, and obtain by litigation, action, or
otherwise any money or other thing of value to which the
principal is, may become, or may claim to be entitled;
(2) conserve, invest, disburse, or use any money or other thing
of value received on behalf of the principal for the purposes
intended;
(3) contract in any manner with any person, on terms agreeable to
the attorney in fact or agent, to accomplish a purpose of a
transaction and perform, rescind, reform, release, or modify the
contract or another contract made by or on behalf of the
principal;
(4) execute, acknowledge, seal, and deliver a deed, revocation,
mortgage, lease, notice, check, release, or other instrument the
agent considers desirable to accomplish a purpose of a
transaction;
(5) prosecute, defend, submit to arbitration, settle, and propose
or accept a compromise with respect to a claim existing in favor
of or against the principal or intervene in an action or
litigation relating to the claim;
(6) seek on the principal's behalf the assistance of a court to
carry out an act authorized by the power of attorney;
(7) engage, compensate, and discharge an attorney, accountant,
expert witness, or other assistant;
(8) keep appropriate records of each transaction, including an
accounting of receipts and disbursements;
(9) prepare, execute, and file a record, report, or other
document the attorney in fact or agent considers necessary or
desirable to safeguard or promote the principal's interest under
a statute or governmental regulation;
(10) reimburse the attorney in fact or agent for expenditures
made in exercising the powers granted by the durable power of
attorney; and
(11) in general, do any other lawful act that the principal may
do with respect to a transaction.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 492. CONSTRUCTION OF POWER RELATING TO REAL PROPERTY
TRANSACTIONS. In a statutory durable power of attorney, the
language conferring authority with respect to real property
transactions 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, 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) do 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 power 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 them;
(D) purchase supplies, hire assistance or labor, or make repairs
or alterations in the real property; and
(E) manage and supervise an interest in real property, including
the mineral estate, by, for example, entering into a lease for
oil, gas, and mineral purposes, making contracts for development
of the mineral estate, or 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
(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; 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.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1997, 75th Leg., ch. 455, Sec. 5, eff.
Sept. 1, 1997.
Text of article effective until January 01, 2014
Sec. 493. CONSTRUCTION OF POWER RELATING TO TANGIBLE PERSONAL
PROPERTY TRANSACTIONS. In a statutory durable power of attorney,
the language conferring general authority with respect to
tangible personal property transactions empowers the attorney in
fact or agent to:
(1) accept as a gift or as security for a loan, reject, demand,
buy, receive, or otherwise acquire ownership or possession of
tangible personal property or an interest in tangible personal
property;
(2) sell, exchange, convey with or without covenants, release,
surrender, mortgage, encumber, pledge, hypothecate, create a
security interest in, pawn, grant options concerning, lease or
sublet to others, or otherwise dispose of tangible personal
property or an interest in tangible personal property;
(3) release, assign, satisfy, or enforce by litigation, action,
or otherwise a mortgage, security interest, encumbrance, lien, or
other claim on behalf of the principal, with respect to tangible
personal property or an interest in tangible personal property;
and
(4) do an act of management or conservation with respect to
tangible personal property or an interest in tangible personal
property on behalf of the principal, including:
(A) insuring against casualty, liability, or loss;
(B) obtaining or regaining possession or protecting the property
or interest by litigation, action, or otherwise;
(C) paying, compromising, or contesting taxes or assessments or
applying for and receiving refunds in connection with taxes or
assessments;
(D) moving from place to place;
(E) storing for hire or on a gratuitous bailment; and
(F) using, altering, and making repairs or alterations.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 494. CONSTRUCTION OF POWER RELATING TO STOCK AND BOND
TRANSACTIONS. In a statutory durable power of attorney, the
language conferring authority with respect to stock and bond
transactions empowers the attorney in fact or agent to buy, sell,
and exchange stocks, bonds, mutual funds, and all other types of
securities and financial instruments other than commodity futures
contracts and call and put options on stocks and stock indexes,
receive certificates and other evidences of ownership with
respect to securities, exercise voting rights with respect to
securities in person or by proxy, enter into voting trusts, and
consent to limitations on the right to vote.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 495. CONSTRUCTION OF POWER RELATING TO COMMODITY AND OPTION
TRANSACTIONS. In a statutory durable power of attorney, the
language conferring authority with respect to commodity and
option transactions empowers the attorney in fact or agent to
buy, sell, exchange, assign, settle, and exercise commodity
futures contracts and call and put options on stocks and stock
indexes traded on a regulated options exchange and establish,
continue, modify, or terminate option accounts with a broker.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 496. CONSTRUCTION OF POWER RELATING TO BANKING AND OTHER
FINANCIAL INSTITUTION TRANSACTIONS. In a statutory durable power
of attorney, the language conferring authority with respect to
banking and other financial institution transactions empowers the
attorney in fact or agent to:
(1) continue, modify, or terminate an account or other banking
arrangement made by or on behalf of the principal;
(2) establish, modify, or terminate an account or other banking
arrangement with a bank, trust company, savings and loan
association, credit union, thrift company, brokerage firm, or
other financial institution selected by the attorney in fact or
agent;
(3) hire a safe deposit box or space in a vault;
(4) contract to procure other services available from a financial
institution as the attorney in fact or agent considers desirable;
(5) withdraw by check, order, or otherwise money or property of
the principal deposited with or left in the custody of a
financial institution;
(6) receive bank statements, vouchers, notices, or similar
documents from a financial institution and act with respect to
them;
(7) enter a safe deposit box or vault and withdraw or add to the
contents;
(8) borrow money at an interest rate agreeable to the attorney in
fact or agent and pledge as security real or personal property of
the principal necessary to borrow, pay, renew, or extend the time
of payment of a debt of the principal;
(9) make, assign, draw, endorse, discount, guarantee, and
negotiate promissory notes, bills of exchange, checks, drafts, or
other negotiable or nonnegotiable paper of the principal, or
payable to the principal or the principal's order, to receive the
cash or other proceeds of those transactions, to accept a draft
drawn by a person on the principal, and to pay the principal when
due;
(10) receive for the principal and act on a sight draft,
warehouse receipt, or other negotiable or nonnegotiable
instrument;
(11) apply for and receive letters of credit, credit cards, and
traveler's checks from a financial institution and give an
indemnity or other agreement in connection with letters of
credit; and
(12) consent to an extension of the time of payment with respect
to commercial paper or a financial transaction with a financial
institution.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 497. CONSTRUCTION OF POWER RELATING TO BUSINESS OPERATION
TRANSACTIONS. In a statutory durable power of attorney, the
language conferring authority with respect to business operating
transactions empowers the attorney in fact or agent to:
(1) operate, buy, sell, enlarge, reduce, or terminate a business
interest;
(2) to the extent that an agent is permitted by law to act for a
principal and subject to the terms of the partnership agreement:
(A) perform a duty or discharge a liability or exercise a right,
power, privilege, or option that the principal has, may have, or
claims to have under a partnership agreement, whether or not the
principal is a general or limited partner;
(B) enforce the terms of a partnership agreement by litigation,
action, or otherwise; and
(C) defend, submit to arbitration, settle, or compromise
litigation or an action to which the principal is a party because
of membership in the partnership;
(3) exercise in person or by proxy or enforce by litigation,
action, or otherwise a right, power, privilege, or option the
principal has or claims to have as the holder of a bond, share,
or other instrument of similar character and defend, submit to
arbitration, settle, or compromise a legal proceeding to which
the principal is a party because of a bond, share, or similar
instrument;
(4) with respect to a business owned solely by the principal:
(A) continue, modify, renegotiate, extend, and terminate a
contract made with an individual or a legal entity, firm,
association, or corporation by or on behalf of the principal with
respect to the business before execution of the power of
attorney;
(B) determine:
(i) the location of its operation;
(ii) the nature and extent of its business;
(iii) the methods of manufacturing, selling, merchandising,
financing, accounting, and advertising employed in its operation;
(iv) the amount and types of insurance carried; and
(v) the mode of engaging, compensating, and dealing with its
accountants, attorneys, and other agents and employees;
(C) change the name or form of organization under which the
business is operated and enter into a partnership agreement with
other persons or organize a corporation to take over all or part
of the operation of the business; and
(D) demand and receive money due or claimed by the principal or
on the principal's behalf in the operation of the business and
control and disburse the money in the operation of the business;
(5) put additional capital into a business in which the principal
has an interest;
(6) join in a plan of reorganization, consolidation, or merger of
the business;
(7) sell or liquidate a business or part of it at the time and on
the terms that the attorney in fact or agent considers desirable;
(8) establish the value of a business under a buy-out agreement
to which the principal is a party;
(9) prepare, sign, file, and deliver reports, compilations of
information, returns, or other papers with respect to a business
that are required by a governmental agency, department, or
instrumentality or that the attorney in fact or agent considers
desirable and make related payments; and
(10) pay, compromise, or contest taxes or assessments and do any
other act that the attorney in fact or agent considers desirable
to protect the principal from illegal or unnecessary taxation,
fines, penalties, or assessments with respect to a business,
including attempts to recover, in any manner permitted by law,
money paid before or after the execution of the power of
attorney.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 498. CONSTRUCTION OF POWER RELATING TO INSURANCE
TRANSACTIONS. In a statutory durable power of attorney, the
language conferring authority with respect to insurance and
annuity transactions empowers the attorney in fact or agent to:
(1) continue, pay the premium or assessment on, modify, rescind,
release, or terminate a contract procured by or on behalf of the
principal that insures or provides an annuity to either the
principal or another person, whether or not the principal is a
beneficiary under the contract;
(2) procure new, different, or additional contracts of insurance
and annuities for the principal or the principal's spouse,
children, and other dependents and select the amount, type of
insurance or annuity, and mode of payment;
(3) pay the premium or assessment on or modify, rescind, release,
or terminate a contract of insurance or annuity procured by the
attorney in fact or agent;
(4) designate the beneficiary of the contract, except that an
attorney in fact or agent may be named a beneficiary of the
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;
(5) apply for and receive a loan on the security of the contract
of insurance or annuity;
(6) surrender and receive the cash surrender value;
(7) exercise an election;
(8) change the manner of paying premiums;
(9) change or convert the type of insurance contract or annuity
with respect to which the principal has or claims to have a power
described in this section;
(10) change the beneficiary of a contract of insurance or
annuity, except that the attorney in fact or agent may be
designated a beneficiary only to the extent authorized by
Subdivision (4) of this section;
(11) apply for and procure government aid to guarantee or pay
premiums of a contract of insurance on the life of the principal;
(12) collect, sell, assign, hypothecate, borrow on, or pledge the
interest of the principal in a contract of insurance or annuity;
and
(13) pay from proceeds or otherwise, compromise or contest, or
apply for refunds in connection with a tax or assessment levied
by a taxing authority with respect to a contract of insurance or
annuity or its proceeds or liability accruing because of the tax
or assessment.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 499. CONSTRUCTION OF POWER RELATING TO ESTATE, TRUST, AND
OTHER BENEFICIARY TRANSACTIONS. In a statutory durable power of
attorney, the language conferring authority with respect to
estate, trust, and other beneficiary transactions empowers the
attorney in fact or agent to act for the principal in all matters
that affect a trust, probate estate, guardianship,
conservatorship, 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 ascertain the meaning, validity, or effect of a
deed, will, declaration of trust, or other instrument or
transaction affecting the interest of the principal;
(4) initiate, participate in, or oppose a legal or judicial
proceeding to remove, substitute, or surcharge a fiduciary;
(5) conserve, invest, disburse, or use anything received for an
authorized purpose; and
(6) transfer all or part of an interest of the principal 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.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 500. CONSTRUCTION OF POWER RELATING TO CLAIMS AND
LITIGATION. In a statutory durable power of attorney, the
language conferring general authority with respect to claims and
litigation empowers the attorney in fact or agent to:
(1) assert and prosecute before a court or administrative agency
a claim, a claim for relief, a counterclaim, or an offset or
defend against an individual, a legal entity, or a government,
including suits to recover property or other thing of value, to
recover damages sustained by the principal, to eliminate or
modify tax liability, or to seek an injunction, specific
performance, or other relief;
(2) bring an action to determine adverse claims, intervene in an
action or litigation, and act as amicus curiae;
(3) in connection with an action or litigation, procure an
attachment, garnishment, libel, order of arrest, or other
preliminary, provisional, or intermediate relief and use an
available procedure to effect or satisfy a judgment, order, or
decree;
(4) in connection with an action or litigation, perform any
lawful act the principal could perform, including acceptance of
tender, offer of judgment, admission of facts, submission of a
controversy on an agreed statement of facts, consent to
examination before trial, and binding of the principal in
litigation;
(5) submit to arbitration, settle, and propose or accept a
compromise with respect to a claim or litigation;
(6) waive the issuance and service of process on the principal,
accept service of process, appear for the principal, designate
persons on whom process directed to the principal may be served,
execute and file or deliver stipulations on the principal's
behalf, verify pleadings, seek appellate review, procure and give
surety and indemnity bonds, contract and pay for the preparation
and printing of records and briefs, or receive and execute and
file or deliver a consent, waiver, release, confession of
judgment, satisfaction of judgment, notice, agreement, or other
instrument in connection with the prosecution, settlement, or
defense of a claim or litigation;
(7) act for the principal with respect to bankruptcy or
insolvency proceedings, whether voluntary or involuntary,
concerning the principal or some other person, with respect to a
reorganization proceeding or a receivership or application for
the appointment of a receiver or trustee that affects an interest
of the principal in real or personal property or other thing of
value; and
(8) pay a judgment against the principal or a settlement made in
connection with a claim or litigation and receive and conserve
money or other thing of value paid in settlement of or as
proceeds of a claim or litigation.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 501. CONSTRUCTION OF POWER RELATING TO PERSONAL AND FAMILY
MAINTENANCE. In a statutory durable power of attorney, the
language conferring authority with respect to personal and family
maintenance 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 providing living quarters
by purchase, lease, or other contract, or 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) of
this section normal domestic help, usual vacations and travel
expenses, and funds for shelter, clothing, food, appropriate
education, and other current living costs;
(3) pay necessary medical, dental, and surgical care,
hospitalization, and custodial care for the individuals described
by Subdivision (1) of this section;
(4) continue any provision made by the principal, for the
individuals described by Subdivision (1) of this section, 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) of this section and open
new accounts the attorney in fact or agent considers desirable to
accomplish a lawful purpose; and
(6) continue payments incidental to the membership or affiliation
of the principal in a church, club, society, order, or other
organization or to continue contributions to those organizations.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 502. CONSTRUCTION OF POWER RELATING TO BENEFITS FROM CERTAIN
GOVERNMENTAL PROGRAMS OR CIVIL OR MILITARY SERVICE. In a
statutory durable power of attorney, the language conferring
authority with respect to benefits from social security,
Medicare, Medicaid, or other governmental programs or civil or
military service empowers the attorney in fact or agent to:
(1) execute vouchers in the name of the principal for allowances
and reimbursements payable by the United States, a foreign
government, or a state or subdivision of a state to the
principal, including allowances and reimbursements for
transportation of the individuals described by Section 501(1) of
this code, and for shipment of their household effects;
(2) take possession and order the removal and shipment of
property of the principal from a post, warehouse, depot, dock, or
other place of storage or safekeeping, either governmental or
private, and execute and deliver a release, voucher, receipt,
bill of lading, shipping ticket, certificate, or other instrument
for that purpose;
(3) prepare, file, and prosecute a claim of the principal to a
benefit or assistance, financial or otherwise, to which the
principal claims to be entitled under a statute or governmental
regulation;
(4) prosecute, defend, submit to arbitration, settle, and propose
or accept a compromise with respect to any benefits the principal
may be entitled to receive; and
(5) receive the financial proceeds of a claim of the type
described in this section and conserve, invest, disburse, or use
anything received for a lawful purpose.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 503. CONSTRUCTION OF POWER RELATING TO RETIREMENT PLAN
TRANSACTIONS. (a) In a statutory durable power of attorney, the
language conferring authority with respect to retirement plan
transactions empowers the attorney in fact or agent to do any
lawful act the principal may do 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 that an attorney in
fact or agent may be named a beneficiary 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;
(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 right of the principal to be a beneficiary of a
joint or survivor annuity if the principal is a spouse who is not
employed;
(9) receive, endorse, and cash payments from a retirement plan;
(10) waive the right of the principal 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.
(b) In this section, "retirement plan" means:
(1) an employee pension benefit plan as defined by Section 1002,
Employee Retirement Income Security Act of 1974 (ERISA) (29
U.S.C. Section 1002), without regard to the provisions of Section
(2)(B) of that section;
(2) a plan that does not meet the definition of an employee
benefit plan under ERISA because the plan does not cover common
law employees;
(3) a plan that is similar to an employee benefit plan under
ERISA, regardless of whether it is covered by Title I of ERISA,
including a plan that provides death benefits to the beneficiary
of employees; and
(4) an individual retirement account or annuity or a
self-employed pension plan or similar plan or account.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993. Amended by Acts 1997, 75th Leg., ch. 455, Sec. 6, eff.
Sept. 1, 1997.
Text of article effective until January 01, 2014
Sec. 504. CONSTRUCTION OF POWER RELATING TO TAX MATTERS. In a
statutory durable power of attorney, the language conferring
authority with respect to tax matters empowers the attorney in
fact or agent to:
(1) prepare, sign, and file federal, state, local, and foreign
income, gift, payroll, Federal Insurance Contributions Act, and
other tax returns, claims for refunds, requests for extension of
time, petitions regarding tax matters, and any other tax-related
documents, including receipts, offers, waivers, consents,
including consents and agreements under Section 2032A, Internal
Revenue Code of 1986 (26 U.S.C. Section 2032A), closing
agreements, and any power of attorney form required by the
Internal Revenue Service or other taxing authority with respect
to a tax year on which the statute of limitations has not run and
25 tax years following that tax year;
(2) pay taxes due, collect refunds, post bonds, receive
confidential information, and contest deficiencies determined by
the Internal Revenue Service or other taxing authority;
(3) exercise any election available to the principal under
federal, state, local, or foreign tax law; and
(4) act for the principal in all tax matters for all periods
before the Internal Revenue Service and any other taxing
authority.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 505. EXISTING INTEREST; FOREIGN INTERESTS. The powers
described in Sections 492 through 504 of this code may be
exercised equally with respect to an interest the principal has
at the time the durable power of attorney is executed or acquires
later, whether or not the property is located in this state and
whether or not the powers are exercised or the durable power of
attorney is executed in this state.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.
Text of article effective until January 01, 2014
Sec. 506. UNIFORMITY OF APPLICATION AND CONSTRUCTION. This
chapter shall be applied and construed to effect its general
purpose to make uniform the law with respect to the subject of
this chapter among states enacting it.
Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1,
1993.