Definitions         

Principal - A person who authorizes another to act for him as his agent.

Agent - A person who represents and acts by authority of and on account of a principal.

Power of Attorney - A written instrument by which a person appoints another to perform certain specific acts or kinds of acts on behalf of the principal.

Qualification of Parties - Any person competent to contract may become a principal and any person competent to contract may become an agent.  See also Section 15.48.8.

Types of Powers of Attorney        
Special
If the power conferred is specified, limited or restricted in any particular, it is a special power of attorney.  It may be directed to the performance of a particular act, or acts, for example.

“To execute leases and collect rentals from the real property owned by me in Mustang County, Texas, said property described as follows:”

or

“To sell the 50-acre tract owned by me in Longhorn County, Texas, said property described as follows:”

General or Universal
A power of attorney purporting to confer a wide variety of specific acts upon an agent is referred to as a general power of attorney.

Joint Powers       
Two or more persons may be named as attorneys-in-fact in a power of attorney.  The appointment may confer powers by which one of the agents, or by which less than all the agents, may act rather than all agents acting in concert.  In the absence of a clear expression in the power of attorney to the contrary, all joint agents should be required to join in any act to become binding upon the principal.         

Durable - discussed later in Section 15.48.6

Requirements       
For title insurance purposes, a power of attorney authorizing an agent to act for a principal in matters concerning real property must be in writing, acknowledged, and recorded in the office of the county recorder of the county in which the real property is situated.

A special power of attorney, whether durable or not, is preferred.

See also Texas Bulletin TX2013004 -  Relating to Powers of Attorney in HEL transactions.

•   Titles to interests in real property should not be subject to uncertainty by reason of unauthorized conveyances executed by agents of owners.  For this reason title insurers are reluctant to rely upon an implied delegation of authority from a principal to an agent or attorney-in-fact as contained in the conventional general or universal form of power of attorney.
•          The general rule is that an agent’s authority to deal in real property of the principal must have been specifically granted and there must be a good reason why the principal is unable to execute the instrument.  Otherwise, the title insurance policy issuing agent should require the principal to act.
•   The following are examples of the strict construction of language in powers of attorney generally adhered to:
  •      An authority “to sell” may authorize the negotiation of the terms of sale but is not authority to execute a deed.
  •      An authority to “mortgage” is not authority to execute a deed of trust.
  •      An authority to “transfer” is not authority to mortgage.
  •      An authority to “sell and convey” is not authority to execute a lease.
  •      An authority to “attend to all business affairs pertaining to real or personal estate” is too indefinite for any reliance.

Who May Execute Or Act Under A Power Of Attorney

Any person natural or artificial who is competent to contract may act as agent under a power of attorney. Two or more persons, either jointly or severally, may be appointed as agents.

Where A and B are appointed as attorney-in-fact, it is generally held that, in the absence of contrary intention, the authority conferred is joint and both must act before they can bind the principal.

A corporation may give a power of attorney and become bound by the act of its agent, provided that the agent is appointed by the board of directors and there is no sale of all the assets. If authorized by its articles, a corporation may act as an attorney-in-fact. A partnership or partner may also give a power of attorney, if authorized by all the partners.

Generally, fiduciaries (trustees, conservators, guardians, executors, personal representatives, etc.) may not execute powers of attorney or otherwise delegate their authorities and responsibilities unless the document that establishes such authorities and responsibilities (trust agreements, court order appointing, will, etc.) provides for such delegation of authority. The Texas Trust Act was amended effective September 1, 2017 to allow Trustees to give powers of attorney (Tex. Prop. Code  Sec. 113.018). It is our position that this amendment does not apply to a trust created in a will which was executed prior to the effective date of the amendment.

Agent’s Certification:  Texas Estates Code Section 751.203

Tx Affidavit Regarding Power of Attorney 1997

See also Texas Bulletin TX2015005 – LEGISLATIVE UPDATE 2015 Relating to Time limit for recording a durable power of attorney

See also Tx Affidavit Regarding Power of Attorney 1997

The Military Power of Attorney is established by Federal Law and is available for use by any service member or federal employee being deployed into a location where legal assistance from non-military legal assistance is not reasonably available.

A military power may be used as a statutory durable power of attorney even though the form is not identical to the Texas Statutory Power.  It may be acknowledged by judge advocates, civilian attorneys serving as legal assistance attorneys, all adjutants and others designated by the Secretary of Defense.