This topic contains 6 replies, has 4 voices, and was last updated by  AndyLJohnson 6 years, 4 months ago.

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  • #13973

    deathdealer99
    Participant

    A customer asked me this question:

    If my wife and I have to sign a document and have it Notarized, but she is “institutionalized” and cannot sign, but their son is the POA for her, can he sign the document for her? And if so, what proof does he need to bring the Notary?

    ๐Ÿ˜ฏ

    Thanks.

    #14315

    LindaHFL
    Participant

    What state are you in?

    And one small word of advice before I continue – I’d strongly suggest you find another forum alias besides “deathdealer” – especially when talking about POA’s, (will, estates,) etc.. Less foreboding and, most definitely, more professional ๐Ÿ™‚

    #14314

    mharmon
    Participant

    The answer really depends on what state you’re in, as different rules apply.

    I can only speak for California. So if you’re in CA… read on. If the son is the Attorney in Fact and claims the right to sign for her, then, in California, that’s all we need to be told. A CA notary is not allowed to determine or certify that anybody holds a certain capacity, such as Attorney in Fact. We identify the person in front of us, and if they claim they have the right to sign…that’s what they claim. The legalities are left to the courts.

    So in the case here, provided it were in California of course, the son would take the document and sign his own name, telling the Notary that he holds the POA. He doesn’t need to show it to the notary because the notary has no legal authority to determine if the document is properly executed or not. In some cases, the person might write, “Attorney in Fact” after his name or something similar…whatever the entity receiving the document wants, but they notary is only verifying the ID and signature of the person, not his claim of authority to sign.

    Beyond that, you need to speak to an attorney. Somebody acting as Attorney in Fact often has a fiduciary duty, and they need to understand their role and what it means…usually before accepting. ๐Ÿ˜‰

    #14317

    The notary should see the original power of attorney document to make sure it is valid both in time and scope (ie it’s not expired and it applies for the situation).

    #14316

    mharmon
    Participant

    @andyljohnson wrote:

    The notary should see the original power of attorney document to make sure it is valid both in time and scope (ie it’s not expired and it applies for the situation).

    Andy, I think that in some states, that would be perfectly acceptable. It’s not for California, though, which has a very strict prohibition about determining or certifying the representative capacity of the signer.

    #14318

    LindaHFL
    Participant

    Not required in FL either – we are to take the signer at the word that they have POA for the person. Do I agree with this? Absolutely not. However, it’s possible that if I am required to see the POA, now I’m required to determine if it’s acceptable, valid, generic to the situation…and to me those are all determinations that may constitute UPL.

    #14319

    @mharmon wrote:

    Andy, I think that in some states, that would be perfectly acceptable. It’s not for California, though, which has a very strict prohibition about determining or certifying the representative capacity of the signer.

    This is one of the rare times when you are not correct. ๐Ÿ˜‰ A Power of Attorney is different from “representative capacity.” If the signer (attorney in fact) presents an ORIGINAL POA, they legally are allowed to sign for the principal since they have the “power.” The notary must read the POA to make sure it is applicable in time and scope, i.e. isn’t expired and isn’t limited to certain situations. The principal must be alive. The notary should make a copy of the ORIGINAL POA and keep that with his/her notarial records/journal. Unfortunately, the notary handbook doesn’t address these situations, but our CA Notary Seminar does. ๐Ÿ˜€

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