Durable Powers of Attorney in Texas
Law in Effect September 1, 2017 - Update
Bulletin No. 2017-107

This bulletin supplements and amends the prior NITIC Bulletin, 2017 Durable Powers of Attorneys, and covers the following topics:
  • Alternative form for a Certification of Durable Power of Attorney by Agent
    • Form: CERTIFICATION OF DURABLE POWER OF ATTORNEY WITHOUT JURAT
  • Ratifying Affidavit for Closing
    • Form: AFFIDAVIT FOR DPOA 
  • Rejecting a DPOA in Writing
    • Form: REJECTION OF DURABLE POWER OF ATTORNEY 
In accordance with the amended Durable Power of Attorney ("DPOA") Act, when the term "Agent" is used in this Bulletin, it refers to the person acting for the Principal, previously known as the Principal's "Attorney in Fact."

Form for "Certification of Durable Power of Attorney by Agent"
 
NITIC requires a "Certification of Durable Power of Attorney by Agent" form for every DPOA relied upon in a closing. The law requires that the Certification is signed under penalty of perjury. The form NITIC previously distributed included a notary block to accomplish this requirement. However, a Certification that is not notarized is acceptable, as long as it contains a statement indicating that it was signed under penalty of perjury. An optional form with that statement can be found here - NITIC Certification of Durable Power of Attorney by Agent Without Jurat Form. This Certification does not need to be recorded, but kept with the GF file.
 
Ratifying the Status of the Principal  
 
NITIC requires that the Agent sign an affidavit at closing that confirms that the Principal/Maker of the DPOA is still alive. The form entitled "Affidavit Confirming Validity of Power of Attorney" can be found here - NITIC Affidavit for DPOA Form. This affidavit also does not need to be recorded, but kept in the GF file.
 
Rejecting a DPOA in Writing
 
The new law requires that if you reject a DPOA for any reason, you must do so in writing-regardless of how blatantly insufficient the DPOA may be. Not only do you have to reject the document in writing, you have to state the reason as to why you are rejecting it, and the reason has to be on the approved list of reasons set out in the amended Code. If you fail to reject a DPOA in writing by the deadline, you lose the right to reject it later.  
 
A party to a transaction may challenge whether you rejected a DPOA on a timely basis and for a legitimate reason. To make sure you have proof in your file that you acted properly, we have prepared a form for you to use whenever you reject a DPOA. You may deliver a completed form to the Agent either in hard copy or by email, as long as you keep a copy or record of it.
The form is simple, but the contents are important. First, you must complete the form with the date you give it to the Agent. That date must be within ten business days of the day you are presented with the DPOA or within seven business days of your receiving a Certification, if you timely requested one.
 
The "Permitted Reason(s) from Estates Code for Rejecting POA" field also is important. To make it easier, we have included Section 751.206 of the Estates Code with this form. It lists the reasons you may use to reject a DPOA. You will most often see reasons (5) or (6).
You can find the "Rejection of Durable Power of Attorney" Form here - NITIC Rejection of Durable Power of Attorney Form.

As you continue to operate under the new laws and with the new forms, questions are likely to arise, so please contact us if you need any additional information or have questions regarding a specific situation.

Bruce D. Liesman, CTIP, CAEP
VP - Chief Texas Counsel
Cell: 210-865-6816

Eric McNeese
VP - Texas Underwriting Counsel
Cell: 325-203-3313

Mary Belan Doggett 
VP - Texas Underwriting Counsel
mary.doggett@nititle.com 
Cell: 210-363-3855