85R1508 MTB-F     By: Farrar H.B. No. 3847       A BILL TO BE ENTITLED   AN ACT   relating to guardianships, substitutes for guardianships, and   durable powers of attorney for persons with disabilities or who are   incapacitated.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  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 temporary or permanent guardian of the estate for a ward   who is [of] the principal who executed the power of attorney, the   powers and authority granted to [of] the attorney in fact or agent   named in the power of attorney are automatically revoked on the   qualification of the guardian unless the court enters an order   that:                (1)  affirms and states the effectiveness of the power   of attorney; and                (2)  confirms the validity of the appointment of the   named attorney in fact or agent [terminate on the qualification of   the guardian of the estate].          (b)  If the powers and authority of an [The] attorney in fact   or agent are revoked as provided by Subsection (a), 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 2.  Section 751.054(a), Estates Code, is amended to   read as follows:          (a)  The revocation by, the death of, or the qualification of   a temporary or permanent guardian of the estate of a principal who   has executed a durable power of attorney or the removal of an   attorney in fact or agent under Chapter 753 does not revoke or   terminate the agency as to the attorney in fact, agent, or other   person who acts in good faith under or in reliance on the power   without actual knowledge of the termination of the power by:                (1)  the revocation;                (2)  the principal's death; [or]                (3)  the qualification of a guardian of the estate of   the principal; or                (4)  the attorney in fact's or agent's removal.          SECTION 3.  Section 751.055(a), Estates Code, is amended to   read as follows:          (a)  As to an act undertaken in good-faith reliance on a   durable power of attorney, an affidavit executed by the attorney in   fact or agent under the durable power of attorney stating that the   attorney in fact or agent did not have, at the time the power was   exercised, actual knowledge of the termination of the power by   revocation, the principal's death, the principal's divorce or the   annulment of the principal's marriage if the attorney in fact or   agent was the principal's spouse, [or] the qualification of a   temporary or permanent guardian of the estate of the principal, or   the attorney in fact's or agent's removal, 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.          SECTION 4.  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, is removed   by court order, 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, or is removed by court order, I name   the following (each to act alone and successively, in the order   named) as successor(s) to that agent: __________.          Signed this ______ day of __________, _____________          ___________________________          (your signature)   State of _______________________   County of ______________________   This document was acknowledged before me on ____________(date) by   ________________________          (name of principal)          ______________________________          (signature of notarial officer)   (Seal, if any, of notary)   ________________________________________          (printed name)          My commission expires: ______________   IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)   Agent's Duties          When you accept the authority granted under this power of   attorney, you establish a "fiduciary" relationship with the   principal. This is a special legal relationship that imposes on you   legal duties that continue until you resign or the power of attorney   is terminated or revoked by the principal or by operation of law. A   fiduciary duty generally includes the duty to:                (1)  act in good faith;                (2)  do nothing beyond the authority granted in this   power of attorney;                (3)  act loyally for the principal's benefit;                (4)  avoid conflicts that would impair your ability to   act in the principal's best interest; and                (5)  disclose your identity as an agent or attorney in   fact when you act for the principal by writing or printing the name   of the principal and signing your own name as "agent" or "attorney   in fact" in the following manner:          (Principal's Name) by (Your Signature) as Agent (or as   Attorney in Fact)          In addition, the Durable Power of Attorney Act (Subtitle P,   Title 2, Estates Code) requires you to:                (1)  maintain records of each action taken or decision   made on behalf of the principal;                (2)  maintain all records until delivered to the   principal, released by the principal, or discharged by a court; and                (3)  if requested by the principal, provide an   accounting to the principal that, unless otherwise directed by the   principal or otherwise provided in the Special Instructions, must   include:                      (A)  the property belonging to the principal that   has come to your knowledge or into your possession;                      (B)  each action taken or decision made by you as   agent or attorney in fact;                      (C)  a complete account of receipts,   disbursements, and other actions of you as agent or attorney in fact   that includes the source and nature of each receipt, disbursement,   or action, with receipts of principal and income shown separately;                      (D)  a listing of all property over which you have   exercised control that includes an adequate description of each   asset and the asset's current value, if known to you;                      (E)  the cash balance on hand and the name and   location of the depository at which the cash balance is kept;                      (F)  each known liability;                      (G)  any other information and facts known to you   as necessary for a full and definite understanding of the exact   condition of the property belonging to the principal; and                      (H)  all documentation regarding the principal's   property.   Termination of Agent's Authority          You must stop acting on behalf of the principal if you learn   of any event that terminates this power of attorney or your   authority under this power of attorney. An event that terminates   this power of attorney or your authority to act under this power of   attorney includes:                (1)  the principal's death;                (2)  the principal's revocation of this power of   attorney or your authority;                (3)  the occurrence of a termination event stated in   this power of attorney;                (4)  if you are married to the principal, the   dissolution of your marriage by court decree of divorce or   annulment;                (5)  the appointment and qualification of a temporary   or permanent guardian of the principal's estate unless a court   order provides otherwise; or                (6)  if ordered by a court, your removal as agent   (attorney in fact) under this power of attorney [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 5.  Subtitle P, Title 2, Estates Code, is amended by   adding Chapter 753 to read as follows:   CHAPTER 753.  REMOVAL OF ATTORNEY IN FACT OR AGENT          Sec. 753.001.  PROCEDURE FOR REMOVAL. (a) The following   persons may file a petition under this section:                (1)  any person named as a successor attorney in fact or   agent in a durable power of attorney; or                (2)  if the person with respect to whom a guardianship   proceeding has been commenced is a principal who has executed a   durable power of attorney, any person interested in the   guardianship proceeding, including an attorney ad litem or guardian   ad litem.          (b)  On the petition of a person described by Subsection (a),   a probate court, after a hearing, may enter an order to:                (1)  remove a person named and serving as an attorney in   fact or agent under a durable power of attorney and, subject to   Subsection (d), authorize the appointment of a successor attorney   in fact or agent who is named in the durable power of attorney; and                (2)  if compensation is allowed by the terms of the   durable power of attorney, deny all or part of the removed attorney   in fact's or agent's compensation.          (c)  A court may enter an order under Subsection (b) if the   court finds:                (1)  that the attorney in fact or agent has breached the   attorney in fact's or agent's fiduciary duties to the principal;                (2)  that the attorney in fact or agent has materially   violated or attempted to violate the terms of the durable power of   attorney and the violation or attempted violation results in a   material financial loss to the principal;                (3)  that the attorney in fact or agent is   incapacitated or is otherwise incapable of properly performing the   attorney in fact's or agent's duties;                (4)  that the attorney in fact or agent has failed to   make an accounting:                      (A)  that is required by Section 751.104 or other   law or by the terms of the durable power of attorney; or                      (B)  as ordered by the court; or                (5)  another cause for removal.          (d)  The court may not authorize the appointment of a   successor attorney in fact or agent who is named in the durable   power of attorney under Subsection (b) unless the court enters a   finding that the person is qualified and capable of properly   performing the duties owed by the person to the principal under the   terms of the durable power of attorney and other applicable law.          Sec. 753.002.  NOTICE TO THIRD PARTIES. Not later than the   21st day after the date the court enters an order removing an   attorney in fact or agent and authorizing the appointment of a   successor under Section 753.001, the successor attorney in fact or   agent shall provide actual notice of the order to each third party   that the attorney in fact or agent has reason to believe relied on   or may rely on the durable power of attorney.          SECTION 6.  Section 1055.003, Estates Code, is amended by   adding Subsection (d) to read as follows:          (d)  This section does not apply to a person who is entitled   to receive notice under Section 1051.104.          SECTION 7.  Section 1101.002, Estates Code, is amended to   read as follows:          Sec. 1101.002.  CONTENTS OF APPLICATION; CONFIDENTIALITY OF   CERTAIN ADDRESSES. An application filed under Section 1101.001 may   omit the address of a person named in the application if:                (1)  the application states that the person is or was   protected by a protective order issued under Chapter 85, Family   Code;                (2)  a copy of the protective order is attached to the   application as an exhibit;                (3)  the application states the county in which the   person resides;                (4)  the application indicates the place where notice   to or the issuance and service of citation on the person may be made   or sent; and                (5)  the application is accompanied by a request for an   order under Section 1051.201 specifying the manner of issuance,   service, and return of citation or notice on the person.          SECTION 8.  Section 1357.052, Estates Code, is amended to   read as follows:          Sec. 1357.052.  AUTHORITY AND DUTIES OF SUPPORTER. (a) A   supporter may exercise the authority granted to the supporter in   the supported decision-making agreement.          (b)  A supporter is in a fiduciary relationship with the   adult with a disability with whom the supporter enters into a   supported decision-making agreement.  The supporter owes to the   adult with a disability the duties listed in the form provided by   Section 1357.056(a), regardless of whether that form is used for   the supported decision-making agreement.          SECTION 9.  Section 1357.053(b), Estates Code, is amended to   read as follows:          (b)  The supported decision-making agreement is terminated   if:                (1)  the Department of Family and Protective Services   finds that the adult with a disability has been abused, neglected,   or exploited by the supporter; [or]                (2)  the supporter is found criminally liable for   conduct described by Subdivision (1); or                (3)  a guardian of the person or estate appointed for   the adult with a disability qualifies.          SECTION 10.  Section 1357.056(a), Estates Code, is amended   to read as follows:          (a)  Subject to Subsection (b), a supported decision-making   agreement is valid only if it is in substantially the following   form:   SUPPORTED DECISION-MAKING AGREEMENT   Important Information For Supporter: Duties          When you accept the authority granted to a supporter under   this supported decision-making agreement, you establish a   "fiduciary" relationship with the adult with a disability. This is   a special legal relationship that imposes on you legal duties that   continue until the agreement is terminated by either party, by the   terms of the agreement, 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   agreement;                (3)  act loyally for the benefit of the adult with a   disability;                (4)  disclose to the adult with a disability pertinent   information affecting that person; and                (5)  avoid conflicts that would impair your ability to   act in the best interest of the adult with a disability.   Important Information For Supporter: Termination of Authority          You must stop acting as a supporter on behalf of the adult   with a disability if you learn of any event that terminates this   agreement or your authority to act under it. An event that   terminates this agreement or your authority to act under it   includes:                (1)  the termination of the agreement by either you or   the adult with a disability;                (2)  the appointment and qualification of a guardian of   the person or estate for the adult with a disability;                (3)  a finding by the Department of Family and   Protective Services that the adult with a disability has been   abused, neglected, or exploited by you; or                (4)  a finding that you are criminally liable for   abusing, neglecting, or exploiting the adult with a disability.   Appointment of Supporter          I, (insert your name), make this agreement of my own free   will.          I agree and designate that:          Name:          Address:          Phone Number:          E-mail Address:   is my supporter.  My supporter may help me with making everyday   life decisions relating to the following:          Y/N     obtaining food, clothing, and shelter          Y/N     taking care of my physical health          Y/N     managing my financial affairs.          My supporter is not allowed to make decisions for me. To help   me with my decisions, my supporter may:          1.  Help me access, collect, or obtain information that is   relevant to a decision, including medical, psychological,   financial, educational, or treatment records;          2.  Help me understand my options so I can make an informed   decision; or          3.  Help me communicate my decision to appropriate persons.          Y/N     A release allowing my supporter to see protected   health information under the Health Insurance Portability and   Accountability Act of 1996 (Pub. L. No. 104-191) is attached.          Y/N     A release allowing my supporter to see educational   records under the Family Educational Rights and Privacy Act of 1974   (20 U.S.C. Section 1232g) is attached.   Effective Date of Supported Decision-Making Agreement          This supported decision-making agreement is effective   immediately and will continue until (insert date) or until the   agreement is terminated by my supporter or me or by operation of   law.          Signed this ______ day of _________, 20___   Consent of Supporter          I, (name of supporter), consent to act as a supporter under   this agreement.                    (signature of supporter)(printed name of supporter)       Signature                    (my signature)(my printed name)                            (witness 1 signature)(printed name of witness 1)                      (witness 2 signature)(printed name of witness 2)            State of          County of          This document was acknowledged before me          on _______________________________ (date)   by _______________________________ and _______________________   (name of adult with a disability)(name of supporter)                                                                                        (signature of notarial officer)   (Seal, if any, of notary)                                   (printed name)                                   My commission expires:   WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY          IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE   OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT THE   ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR EXPLOITED BY   THE SUPPORTER, THE PERSON SHALL REPORT THE ALLEGED ABUSE, NEGLECT,   OR EXPLOITATION TO THE DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES   BY CALLING THE ABUSE HOTLINE AT 1-800-252-5400 OR ONLINE AT   WWW.TXABUSEHOTLINE.ORG.          SECTION 11.  (a)  Sections 751.052, 751.054(a), and   751.055(a), Estates Code, as amended by this Act, and Chapter 753,   Estates Code, as added 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.          (c)  Section 1055.003(d), Estates Code, as added by this Act,   applies to a guardianship proceeding that is pending or commenced   on or after the effective date of this Act.          (d)  Section 1101.002, Estates Code, as amended by this Act,   applies to an application for a guardianship filed on or after the   effective date of this Act.          (e)  Sections 1357.052 and 1357.053(b), Estates Code, as   amended by this Act, apply to a supported decision-making agreement   entered into before, on, or after the effective date of this Act.          (f)  Section 1357.056(a), Estates Code, as amended by this   Act, applies to a supported decision-making agreement entered into   on or after the effective date of this Act.  A supported   decision-making agreement entered into before the effective date of   this Act is governed by the law as it existed on the date the   supported decision-making agreement was entered into, and the   former law is continued in effect for that purpose.          SECTION 12.  This Act takes effect September 1, 2017.