By: Zaffirini  S.B. No. 41          (In the Senate - Filed November 14, 2016; January 24, 2017,   read first time and referred to Committee on State Affairs;   March 6, 2017, reported adversely, with favorable Committee   Substitute by the following vote:  Yeas 9, Nays 0; March 6, 2017,   sent to printer.)Click here to see the committee vote     COMMITTEE SUBSTITUTE FOR S.B. No. 41 By:  Zaffirini     A BILL TO BE ENTITLED   AN ACT     relating to the demand for an accounting from an attorney in fact or   agent of a principal by certain persons.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 751.104, Estates Code, is amended to   read as follows:          Sec. 751.104.  ACCOUNTING.  (a)  The following persons   [principal] may demand an accounting by the attorney in fact or   agent:                (1)  the principal;                (2)  a guardian, spouse, parent, sibling, or adult   child of the principal;                (3)  a person named as a successor attorney in fact or   agent in the durable power of attorney;                (4)  an agent of the principal authorized to make   health care decisions on the principal's behalf by a medical power   of attorney; or                (5)  an attorney who represents the principal.          (b)  Unless otherwise directed by the principal or other   person demanding an accounting, 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.          (c)  Unless directed otherwise by the person demanding an   accounting under this section [principal], the attorney in fact or   agent shall also provide to the person [principal] all   documentation regarding the principal's property.          SECTION 2.  Section 751.105, Estates Code, is amended to   read as follows:          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 to the principal or   other person under Section 751.104 within 60 days of a demand under   that section, or a longer or shorter period as demanded by the   person [principal] or ordered by a court:                (1)[,]  the principal or other person may file suit   to[:                [(1)]  compel the attorney in fact or agent to deliver   the accounting or the assets; or                (2)  the principal may file suit to terminate the power   of attorney.          SECTION 3.  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.          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 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 __________, _____________                                              ___________________________                                              (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 or a family member of   the principal, the principal's agent under a medical power of   attorney, or other legal representative of the principal, provide   an accounting to the principal or other person that, unless   otherwise directed by the principal or other person or otherwise   provided in the Special Instructions, must include:                      (A)  the property belonging to the principal that   has come to your knowledge or into your possession;                      (B)  each action taken or decision made by you as   agent or attorney in fact;                      (C)  a complete account of receipts,   disbursements, and other actions of you as agent or attorney in fact   that includes the source and nature of each receipt, disbursement,   or action, with receipts of principal and income shown separately;                      (D)  a listing of all property over which you have   exercised control that includes an adequate description of each   asset and the asset's current value, if known to you;                      (E)  the cash balance on hand and the name and   location of the depository at which the cash balance is kept;                      (F)  each known liability;                      (G)  any other information and facts known to you   as necessary for a full and definite understanding of the exact   condition of the property belonging to the principal; and                      (H)  all documentation regarding the principal's   property.   Termination of Agent's Authority          You must stop acting on behalf of the principal if you learn   of any event that terminates this power of attorney or your   authority under this power of attorney.  An event that terminates   this power of attorney or your authority to act under this power of   attorney includes:                (1)  the principal's death;                (2)  the principal's revocation of this power of   attorney or your authority;                (3)  the occurrence of a termination event stated in   this power of attorney;                (4)  if you are married to the principal, the   dissolution of your marriage by court decree of divorce or   annulment;                (5)  the appointment and qualification of a permanent   guardian of the principal's estate; or                (6)  if ordered by a court, the suspension of this power   of attorney on the appointment and qualification of a temporary   guardian until the date the term of the temporary guardian expires.   Liability of Agent          The authority granted to you under this power of attorney is   specified in the Durable Power of Attorney Act (Subtitle P, Title 2,   Estates Code).  If you violate the Durable Power of Attorney Act or   act beyond the authority granted, you may be liable for any damages   caused by the violation or subject to prosecution for   misapplication of property by a fiduciary under Chapter 32 of the   Texas Penal Code.          THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER   THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL   RESPONSIBILITIES OF AN AGENT.          SECTION 4.  (a)  Sections 751.104 and 751.105, Estates Code,   as amended by this Act, apply to a durable power of attorney,   including a statutory durable power of attorney, executed before,   on, or after the effective date of this Act.          (b)  Section 752.051, Estates Code, as amended by this Act,   applies to a statutory durable power of attorney executed on or   after the effective date of this Act.  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 statutory durable power of   attorney was executed, and the former law is continued in effect for   that purpose.          SECTION 5.  This Act takes effect immediately if it receives   a vote of two-thirds of all the members elected to each house, as   provided by Section 39, Article III, Texas Constitution.  If this   Act does not receive the vote necessary for immediate effect, this   Act takes effect September 1, 2017.     * * * * *