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Information Regarding Stautory Durable Power Of Attorney Form. This is a Texas form and can be use in Probate Statewide.
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INFORMATION REGARDING STATUTORY DURABLE POWER OF ATTORNEY To: [Principal] From: [Attorney Name] Date: ________________, 20__ Re: Important Information Regarding Your Statutory Durable Power of Attorney The Texas Durable Power of Attorney Act, Tex. Prob. Code Ann. §§ 481-506 (the “Act”), permits you to give someone you trust (called your “agent” or “attorney-in-fact”) broad, sweeping power to deal with your assets. The Act permits the use of a statutory form, called a “Statutory Durable Power of Attorney.” The statutory form gives the agent very broad powers, but it permits you to omit one or more broad powers by crossing out those powers if you do not wish to give your agent the authority to act in these areas. Most of our clients are able to name an agent who they believe is completely trustworthy. In most cases where the agent is trustworthy, we recommend giving all of the standard powers included in the form -- in other words, we recommend that none of the listed powers be crossed out. If you are concerned about giving your agent these broad powers, or if you have questions about what specific powers are included, please let us know, and we will be happy to discuss the Act with you. The statutory form permits you to give your agent limited gift-giving powers by placing your initials by the appropriate sentence on the form. This gift-giving provision in the statutory form only applies if it is initialed. The gift-giving provision in the statutory form limits gifts to any one person in any calendar year to the federal gift tax exclusion amount, currently $11,000 per calendar year per donee. It has been our experience that most of our clients are willing to give the agent broader gift-giving powers than the statutory form’s standard provision. Therefore, we have modified the statutory form to give you a choice as to gift giving powers. By initialing the appropriate box, you can: ! Give your agent no gift-giving powers (which may frustrate planning if you become disabled but which protects you from unwise gifts by your agent); ! Give your agent the gift-giving powers provided for in the statutory form (the power to make gifts up to the federal gift tax annual exclusion amount, currently $11,000 per calendar year per donee); or ! Give your agent the power to make larger gifts, including gifts to charity (which power gives your agent more flexibility if you become disabled but which may leave you vulnerable to excessive gifts by your agent and may cause your agent American LegalNet, Inc. www.USCourtForms.com tax problems if he is within the group of persons to whom gifts are permitted). You should choose which of these three alternatives you wish to select and initial only one box on the form. If you have questions about this matter or wish to further expand or limit giftgiving powers, please let us know and we will be happy to discuss it with you. We also recommend that you give your agent the power to create a trust and/or make transfers to a trust. While this power is not included in the statutory form, it can be quite helpful if you are faced with a long-term disability. If you do not wish for one or more of these additional powers to be included, you must cross through it and initial it when you sign the power of attorney. Of course, in any given case there may be good reasons to include or exclude one or more standard powers or additional powers. For example, you may trust your agent and wish to give him or her broad authority, but you may not wish to give the agent the power to engage in commodity and option transactions. The gift-giving power gives your agent the authority to make gifts to himself or herself (if your agent is a beneficiary under your will or one of your heirs under Texas law). This gift-giving authority may help your family save taxes, but you may be uncomfortable giving your agent this much power. If you have any questions about these powers, please consult us. The Act permits you to make the power immediately effective (in other words, effective the day you sign it, even if you are not incapacitated or disabled) or effective only upon your disability or incapacity. You make this choice by crossing out the alternative you do not wish to include. If you cross out neither alternative, the Act provides that the power is immediately effective. If you wish to make the power effective only upon your disability or incapacity (called a “springing power”), please consider the following: ! Your agent may have difficulty getting springing powers accepted by third parties, such as banks. These third parties are reluctant to rely on the springing power only to have a court determine later that the principal was not in fact incapacitated when the power was used. ! To help gain greater acceptance of springing powers in Texas, the Act provides that a third party, such as a bank, acting in good faith may rely on an affidavit of the agent that the principal is disabled or incapacitated. This means that the agent needs to provide no further proof of disability or incapacity than his or her own sworn statement. This may make it easier to get a springing power accepted, but it also may undermine the reason to use a springing power in the first place. We have added a provision to the statutory form revoking all previous powers of attorney executed under the Act or its predecessor. (The provision makes clear that you are not revoking other agency-type arrangements, such as medical powers of attorney, directives to physicians and family or surrogates, multi-party account agreements, etc.) If you have previously executed a power of attorney which has special revocation requirements (such as requiring the instrument Information Regarding Statutory Durable Power of Attorney Page 2 American LegalNet, Inc. www.USCourtForms.com revoking the power to be filed in the public records), please let us know. Otherwise, we will assume that the provision we added is effective to revoke any old powers of attorney you may have executed. The standard statutory form provides that the power of attorney can be revoked only by actual notice to third parties, making it very difficult to revoke if your agent has moved any of your assets without disclosing this fact to you. You may provide that the power of attorney may be revoked by recording a revocation in the records of the county clerk where you live, but this may make the power of attorney more difficult for your agent to use. We have not modified the standard form to require recording the power of attorney and any revocations, but we will do so if you so request. Information Regarding Statutory Durable Power of Attorney Page 3 American LegalNet, Inc. www.USCourtForms.com 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, [Principal], [Principal's Address], appoint the following 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: [Agent's Name and Address] 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. Statutory Durable Power of Attorney Page 1 American LegalNet, Inc. www.USCourtForms.com SPECIAL INSTRUCTIONS: Special instructions applicable to gifts (initial in front of the appropriate sentence to have it apply): Initial: ______ ______ ______ Choose One of the Following By Initialing Your Choice: No Gift-Giving Power. My agent (attorney in fact) shall not have the power to make gifts. Gift-Giving Power Limited to Gift Tax Exclusion. 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. Broad Gift-Giving Power. My agent (attorney in fact) shall have the power and authority to make gifts out of that portion of my estate that my agent determines is not required for my support during my lifetime to any one or more of the following persons or organizations without the necessity of any court approval or judicial action of any kind if my agent deems the gifts to be in the best interests of my family, for tax savings purposes or otherwise: (i) organizations to which charitable contributions may be made under the Internal Revenue Code and in which my agent reasonably believes that I have an interest; (ii) my wife, any of my descendants, or any other person related to me by blood or marriage; (iii) any devisee or beneficiary under what my agent reasonably believes is my latest validly executed will or trust; and (iv) my agent, if my agent is eligible under either category (ii) or (iii) above. In exercising this power and authority, I remind my agent that he or she is acting in a fiduciary capacity. ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT: My agent shall have the power and authority to create a trust for my benefit, naming my agent as trustee or, if my agent so chooses, naming a bank or trust company with assets under management of $100 million or more as trustee, which trust may also benefit my wife, my descendants and/or the persons named in my last validly executed will, and to transfer all or any part of my property or estate to the trust so created or to any existing trust of which I am a settlor, a beneficiary, or both, even though my agent may be the trustee. Any trust created by my agent or to which my agent transfers property under this provision may contain such dispositive Statutory Durable Power of Attorney Page 2 American LegalNet, Inc. www.USCourtForms.com provisions as my agent shall deem appropriate, so long as they are consistent with this provision, including but not limited to placing assets in a trust which will be protected from and/or assist in qualifying me or a member of my family for Medicaid or other governmental benefits. Without limiting the authority of my agent with respect to tax matters as provided above, I specifically authorize my agent to represent me, and to appoint an agent or agents to represent me, before the Internal Revenue Service or any state or taxing authority by completing, signing and delivering IRS Form 2848 or any other governmental form. My agent shall be entitled to reasonable compensation from my property for services rendered as agent, not to exceed the fees charged by corporate fiduciaries for trust services in the area in which I live or the amount approved by me if I then have capacity. In addition, my agent shall be entitled to be reimbursed from my property for reasonable expenses incurred by my agent in the course of performing his or her duties under this power of attorney, subject to my approval if I then have capacity. Although this instrument contains modifications of the statutory durable power of attorney form found in Tex. Prob. Code Ann. § 490, I intend for it to be a “statutory durable power of attorney” as provided in that section and to be construed as a “statutory durable power of attorney.” This power of attorney terminates on my death, unless I revoke it prior to that time. 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: Initial: Cross Out the Alternative Not Chosen and Initial: ______ (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 Statutory Durable Power of Attorney Page 3 American LegalNet, Inc. www.USCourtForms.com 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. REVOCATION: I hereby revoke all previous powers of attorney previously executed by me to be effective under the Texas Durable Power of Attorney Act, Tex. Prob. Code Ann. §§ 481-506, or its predecessor, Tex. Prob. Code Ann. § 36A. However, I do not revoke other agency-type arrangements not governed by either of these statutes, including but not limited to durable powers of attorney for health care, medical powers of attorney, directives to physicians, directives to physicians and family or surrogates, and multi-party account agreements at financial institutions. 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. SUCCESSOR AGENTS: 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: First Alternate or Successor Agent: [Name and Address] Second Alternate or Successor Agent: [Name and Address] Third Alternate or Successor Agent: [Name and Address] Signed this ____ day of ________________, 20___. [Principal] Statutory Durable Power of Attorney Page 4 American LegalNet, Inc. www.USCourtForms.com STATE OF TEXAS COUNTY OF __________ This document was acknowledged before me on the ____ day of ________________, 20___, by [Principal]. Notary Public, State of Texas THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT. Statutory Durable Power of Attorney Page 5 American LegalNet, Inc. www.USCourtForms.com