TX Underwriting References

Agency

Powers of Attorney

What we require:

1. A competent principal;

  a. 18+ years old
  b. Mentally competent
  c. If principal not competent but POA is durable, obtain letter from doctor that principal was competent at time POA signed

2. Authority granted in writing and currently effective, unless triggering event has occurred under a "springing POA".

  a. For POA's that are not durable, considered "stale" if more than 1 year old and new POA needs to be executed, if possible.
  b. If new POA is not possible, the agent's certification or an affidavit by the agent should be obtained which states that the principal is still 
  alive, competent, and has not revoked the POA. (Certification does not need to be recorded).

3. Express grant of powers. POA's are strictly construed by courts. For title/escrow purposes, the authority must specify power to grant, sell & convey, or mortgage real property. Whenever possible, require the POA identify the specific property and type of transaction;

   For statutory DPOA form (Texas Estates Code Chapters 751 and 752), it must include the power to act for principal in "real estate transactions" 
   and "banking and financing transactions" if principal is the borrower.

4. Not expired by its own terms;

5. Not revoked

  a. Principal must be alive
  b. No guardian has been appointed for principal
  c. Principal is not divorced from agent, or had marriage annulled

4. Original must be notarized and recorded within 30 days of the recording of the document signed by the attorney in fact; however, if the original cannot be obtained but was filed in another county, we will accept a certified copy of the recorded document.

IF BEING USED IN A HOME EQUITY TRANSACTION, WFG REQUIRES the Power of Attorney to be executed in the office of a title company, the lender making the HEL, or an attorney.

In order to insure title,

  a. the principal must be contacted 1) prior to closing, and 2) the day of closing, to confirm they are alive and aware of the fact the POA 
  will be used in the closing transaction.
  b. the lender must have approved (if lender's instructions require prior review and approval). Any approval should be documented and retained in     
  permanent file.

If a DPOA is not immediately accepted, the following items can be requested within the following deadlines:

  a. Agent's Certification within 10 business days after DPOA is presented;
  b. Opinion of Counsel within 10 business days after DPOA is presented;
  c. English translation (if applicable) within 5 business days after DPOA is presented

Upon receipt of either the Agent's Certification or the Opinion of Counsel, have 7 business days to accept If any of the above are requested but not provided, the DPOA doesn't have to be accepted for use

Texas Estates Code §751.206 provides a laundry list of permissible reasons for rejecting DPOA, and a written statement advising of reason(s) for rejection of DPOA must be provided on or before the date the acceptance is required. If DPOA is rejected, but no permissible reason is given, principal or agent has cause of action and court can order acceptance of DPOA and award attorney's fees and costs to plaintiff.