HBA-SEP H.B. 1883 77(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 1883
By: Thompson
Judicial Affairs
8/7/2001
Enrolled



BACKGROUND AND PURPOSE 

Adult Protective Services has indicated that reports of elderly abuse,
neglect, and exploitation have risen by 267 percent in the last decade.  As
a result, the Silver-Haired Legislature this past year recommended amending
the Durable Power of Attorney Act to institute a waiting period for certain
transactions involving an elderly principal and to require an attorney to
file a bond, obtain court approval, or both before completing such a
transaction.  There are other classes of people who have been exploited
because of the actions of the attorney in fact or agent attorney.
Requiring the attorney to timely inform persons and provide an accounting
may protect individuals from further exploitation.  House Bill 1883
provides that 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. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

House Bill 1883 amends the Texas Probate Code to provide that the attorney
in fact or agent (attorney) is a fiduciary and has a duty to inform and to
account for actions taken pursuant to the power of attorney. The attorney
is required to timely inform the principal of all actions taken pursuant to
the power of attorney. Failure to timely inform, as to third parties, does
not invalidate any action of the attorney.  The attorney is required to
maintain records of each action taken or decision made by the attorney.
The principal is authorized to demand an accounting by the attorney.  The
bill sets forth the content of the accounting. Unless otherwise directed by
the principal, the attorney is required to also provide to the principal
all documentation regarding the principal's property.  The attorney is
required to maintain all records until delivered to the principal, released
by the principal, or discharged by a court.  If the attorney 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 is authorized to
file suit to compel the attorney to deliver the accounting or assets or to
terminate the power of attorney.  These provisions do 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.    

EFFECTIVE DATE

September 1, 2001.