Dissenting by
Chief Justice CORNELIUS.I respectfully dissent.
When the Legislature was considering Section 482 of the Probate Code, testimony was presented in committee hearings concerning the need for a legislative enactment permitting springing powers of attorney. This testimony supports the conclusion that the bill was introducing a new feature to the durable power of attorney in Texas. A1 Golden, on behalf of the Real Estate, Probate and Trust Law Section of the State Bar of Texas, testified before the Jurisprudence Committee of the Texas Senate about the springing power of attorney. He testified as follows:
This bill [S.B. 176] also provides something that we have never had in Texas law, but is available in most states and that’s what’s called a springing power of attorney. My experience in twenty-five years of practice in this area is that most people like to give powers of attorney out, but they don’t really want them to become effective until they become disabled. Under current Texas law you cannot do that. This bill would permit you to write a power of attorney that would not become effective until disabled.
Durable Power of Attorney Act: Hearing on Tex. S.B. 176 Before the Senate Jurisprudence Committee, 73rd Leg., R.S. (Feb. 9, 1993). Additionally, Golden testified before the Texas House of Representatives Judicial Affairs Committee as follows:
This [S.B. 176] does several things to change the law in Texas.... Third, one of the things that many of my elderly clients ask for is that they want to give a power of attorney, but they don t want that power to be effective unless and until they are disabled. Under current Texas law you cannot give that kind of power of attorney. It must be, it’s effective when given even though the principal has no incapacity. Under this statute, the power of attorney can be specifically drafted to take effect only on the disability or incapacity of the principal, thereby again meeting a need that many of our citizens have requested.
Durable Power of Attorney Act: Hearing on Tex. S.B. 176 Before the House Judicial Affairs Committee, 73rd Leg., R.S. (Feb. 23,1993).
Senator Parker, the sponsor of Senate Bill 176, also addressed the intent of the Durable Power of Attorney Act. He stated on the floor of the Senate:
What this Bill [S.B. 176] will do, it brings our Probate Code in line with the Uniform Probate Code of most other states.... The way it works now, the person receiving it [power of attorney] can use it whether you’ve become disabled or not. This takes care of that and puts us in line with about thirty-five other states.
Debate on Tex. S.B. 176 on the Floor of the Senate, 73rd Leg., R.S. (Feb. 18, 1993).
I believe the legislative history indicates that the Legislature intended a change in the durable power of attorney law when it enacted the Durable Power of Attorney Act in 1993. The general rule of statutory construction is that a legislative amendment is presumed to change the law, and the courts should adopt a construction that does not render an amendment useless. See Ex parte Trahan, 591 S.W.2d 837, 842 (Tex.Crim.App.1979); see also National Union Fire Ins. Co. v. Burnett, 968 S.W.2d 950, 956 (Tex.App.-Texarkana 1998, no pet.); Texas Commerce Bank Nat’l Ass’n v. Geary, 938 S.W.2d 205, 211 (Tex.App.-Dallas 1997), rev’d on other grounds, 967 S.W.2d 836 (Tex.1998). We *728presume that every word of a statute was used for a purpose and, likewise, that every word excluded from a statute was excluded for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981); National Union Fire Ins. Co. v. Burnett, 968 S.W.2d 950 (Tex.App.-Texarkana 1998). Before 1993, the Probate Code did not expressly allow for a springing durable power of attorney. In 1993, the Legislature amended the Probate Code to expressly authorize a springing power of attorney. We should presume that the Legislature intended to change the law .in 1993. Additionally, the absence of any language permitting a springing power of attorney before 1993 indicates that the Legislature did not intend to authorize a springing power of attorney in Texas at that time. Thus, I would hold that the 1972 arid 1989 versions of the durable power of attorney statute did not authorize a springing power of attorney.
We must decide whether the 1993 Durable Power of Attorney Act may be applied to a power of attorney executed in 1986. I conclude, from the clear language in the legislative acts of 1989 and 1993 amending and codifying the durable power of attorney statutes, that a power of attorney created under the provisions of a former statute continues to be governed by the law in effect when the power of attorney was executed. Act of May 29, 1989, 71st Leg., R.S., ch. 404, § 2, 1989 Tex. Gen. Laws 1551; Act of April 15, 1993, 73rd Leg., R.S., ch. 49, § 2, 1993 Tex. Gen. Laws 112. In 1993, the Legislature provided, “Section 36A, Probate Code is repealed. A power of attorney executed in compliance with that section before the effective date of this Act is valid according to the terms of that section as it existed at the time of the execution, and that section is continued in effect for that purpose.” Act of April 15, 1993, 73rd Leg., R.S., ch. 49, § 2, 1993 Tex. Gen. Laws 112.
Accordingly, I would hold that Brad-field’s 1986 general power of attorney is to be construed under the version of the Probate Code in effect at the time it was executed. As stated above, the version of the Probate Code in effect in 1986 did not authorize a springing power of attorney. The trial court correctly found that, as a matter of law, Virden was not authorized to act as Bradfield’s attorney-in-fact because the power- of attorney was invalid and ineffectual. Because Virden was not authorized, as the attorney-in-fact, to convey any assets to the trust, the trial court properly imposed a constructive trust on the assets Virden conveyed to the trust.
Comerica argues that, if we find the springing power of attorney invalid, we should disregard the provisions that render it invalid and enforce the power of attorney as an ordinary durable power of attorney. The majority opinion essentially accepts this view. I do not believe we can justify such a construction because it would militate against Bradfield’s express intention. Although the majority disputes this, an acceptance of such a construction would result in the power of attorney being effective immediately on its execution and continuing in effect after Bradfield’s incapacity. The majority claims to effectuate Bradfield’s intention, but the construction they give to the instrument is absolutely contrary to Bradfield’s obvious intention, as indicated by the express language Bradfield used in the instrument. The provisions of the power of attorney conclusively indicate that her intention was that the power of attorney would not take effect unless and until she became incapacitated.
I do not disagree that a person can create an ordinary agency to begin only on the occurrence of a future contingency, if the instrument creating the agency expressly and clearly contains language to that effect. But what we have here is not an ordinary agency, but a special kind of power of attorney that was not authorized by law when it was executed. Because it was not authorized by law at the time it was executed, it is completely ineffectual.
*729For these reasons, I would affirm the judgment of the trial court.