Agent

If the Bank allows an individual other than the borrower to sign the loan documents under a Power of Attorney, the Bank should obtain a copy of the Power of Attorney for the Bank’s file.  The Power of Attorney should be signed by the principal and notarized.  The Texas Statutory Durable Power of Attorney form was changed by the Texas legislature in June 2023.  A Statutory Durable Power of Attorney form which complies with the new law is located at the end of this chapter.  The Bank should confirm that the individual who signed the Power of Attorney is still alive and the present city and State or foreign country where the principal is domiciled.  At closing, the Bank may rely upon a certificate signed by the agent as to these facts.  Further, the certificate should state that to the best of the agent’s knowledge after diligent search and inquiry:

•    The Power of Attorney (“POA”) has not been revoked by the principal or suspended or terminated by the occurrence of any event, whether or not referenced in the POA.

•    At the time the POA was executed, the principal was mentally competent to transact legal matters and was not acting under the undue influence of any other person.

•    A permanent guardian of the estate of the principal has not qualified to serve in that capacity.

•    The agent’s powers under the POA have not been suspended by a court in a temporary guardianship or other proceeding.

•    If the agent is (or was) the principal’s spouse, the marriage to the principal has not been dissolved by court decree of divorce or annulment or declared void by a court, or the POA provides specifically that the appointment as the agent for the principal does not terminate if the marriage to the principal has been dissolved by court decree of divorce or annulment or declared void by a court.

•    No proceeding has been commenced for a temporary or permanent guardianship of the person or estate, or both, of the principal.

•    The exercise of the agent’s authority is not prohibited by another agreement or instrument.

The certificate is conclusive proof as between the agent and a third party (other than the principal or the principal’s personal representative) that the POA has not been revoked or terminated.  [TEC 751.055.]  See the sample Certification of Durable Power of Attorney by Agent form located at the end of this Chapter.