Part 3 – Notarizing a Power of Attorney
Welcome to the third installment of our series “Wills and Estate Documents for Notaries.” This week’s article contains basic information that should help you oversee the signing of a power of attorney. We won’t cover any legalities or specifics of the differences between a limited and general power of attorney or touch on the document’s durability. This information is not legal advice; it is based on my experiences.
Below are a few terms that will be helpful to know as you read this article and the article for Part 4 that will be published next week. The descriptions provided apply in this context, but the terms may have other meanings, as well.
Agent – The individual authorized to act on behalf of the principal.
AIF – Acronym for Attorney-in-fact
Attorney-in-fact – This means the same as “agent,” (the one authorized to act on behalf of the principal).
Grantee – Another way to say “agent” or “attorney-in-fact.”
Grantor – The person authorizing the other to act is the principal, grantor, or donor (of the power).
Power of Attorney (also known as a “letter of attorney”) – A written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. (Wikipedia)
POA – Acronym for Power of Attorney. You will see POA used in the article.
Principal – The person authorizing the other to act is the principal, grantor, or donor (of the power).
Often, the phrase “power of attorney” is misused.
For instance, Imaginary Ralph might say “I am Fake Suzy’s power of attorney.”
Obviously, Ralph believes “power of attorney” is his title and that isn’t accurate. What Ralph means is that Suzy signed a document that granted him the right to act on Suzy’s behalf.
Within the text of the power of attorney document Suzy may be referred to as the “principal” or “grantor.”
Ralph is receiving the power to act on Suzy’s behalf and he will be called an “agent,” “attorney-in-fact,” “agent and attorney-in-fact,” or even “grantee” to name a few common terms. Notably, there are probably additional terms for the parties that I am not familiar with, so this isn’t a complete list.
Who signs a power of attorney document?
The question of “Who signs?” seems like a no-brainer.
The principal / grantor gives the power to someone else, so the principal / grantor is the signer. I am mentioning this issue because the people who call for your services are often confused, so I will offer my experience as food for thought.
A few years ago, an individual requested that I notarize his signature on a POA so he could “get power of attorney over my dad” and take over his dad’s affairs.
Yikes! By now, we all know that it doesn’t work like that. One cannot appoint him- or herself to be in charge of the affairs of another.
I am of the belief that notaries cannot tell people what they have done wrong in a case like this where the son is attempting to draft his own documents because that would be the unauthorized practice of law. In this case, I felt like I had a dilemma. On the one hand, it is not our business to get involved in the document’s content. But, after thinking it over, I declined to perform the notarial act because it seemed to me to be misleading. And, it would also reflect poorly on me if I went along with it should this document become the subject of a lawsuit.
Ultimately, I declined it. I wrote in my journal my concerns that a person holding a notarized document with the title “power of attorney” in bold letters at the top could mistakenly open doors even if the wrong person signed it and I didn’t know what to do except decline the notarization. (Some states do not allow a notary that much decision-making power on when to decline a request to notarize a document, so check your laws before you decide when to decline to notarize documents.)
Nothing is ever 100% certain!
Yes, the principal is the main signer; but recently I have been seeing POAs that are involved in loan signings in which the one who is receiving the power has also signed the power of attorney. Take a look at this document. The power of attorney form at that link requires that the party who has been appointed as “agent” sign off on a statement to promise to function dutifully on behalf of the other party. It begins “The undersigned, Agent, executes this Power of Attorney, and by such execution does hereby affirm that the Agent: (A) accepts the appointment as agent; (B) understands the duties under the power of attorney and under the law; (C) …”
The principal’s signature is almost always notarized. The signature of the individual who is granted the authority to carry out the duties can go either way. In your role as notary public, remember that you may only complete certificates bearing the names of those who appeared in your presence.
Notarial Act & Certificate
Generally speaking, a power of attorney is notarized using a Certificate of Acknowledgment. Be sure to perform the verbal ceremony.
Your signer does not have to raise his or her right hand (unless your notary laws require it), but notaries should never be lax about the verbal ceremony. Always “take the acknowledgment” of a signer. If you would like an example, here is what I say when taking an acknowledgment–
“Do you acknowledge that you placed your signature
on this document with genuine intent and for the purposes stated within the document?”
The signer should indicate the answer “yes.”
Follow the basic steps of notarization.
If you aren’t sure what those are, start learning how to notarize almost any document by reading a previous article entitled “Can I notarize this document?” It goes without saying that we (notaries public) are obligated to the citizens in our states to take basic notary training before handling any type of document. If you have not yet taken a course, I am an enthusiastic endorser of the pricing and format of Notary.net’s training!
Here are my basic steps for notarizing documents. You should create your own list that mirrors your own state’s laws–follow it every time.
1-Identify the signer.
2-Start a journal entry.
3-Ensure that the signer is alert and aware.
4-Scan the document visually and ensure it is complete.
5-Check the notarial certificate for the correct venue and compliant language.
6- Perform the correct verbal ceremony; complete the certificate and your journal entry.
7-Issue a receipt (unless you are being paid by another party).
POA Journal Tip
When you list the power of attorney’s execution in your notary journal, you might want to add a notation like this to make clear which POA you notarized. I like to write:
Grantor – Suzy Smith to Grantee – Ralph Smith
The reason I mention this is because some people grant and revoke their powers of attorney whimsically. Noting the name of the agent appointed in addition to the principal / grantor’s name is one of my habits.
Signers of Advanced Years
If you are working with signers of advanced years, it is critical to make sure they know what they are signing.
My good friend James Dawson (retired both from the telecommunications industry and from his position as a California notary) used some of his free time in retirement to unravel a mess for an aging relative with poor sight. She signed off on documents that were shoved underneath her nose to sign by someone she trusted. If not for James Dawson’s tenacity, she would have lost her home (valued at about $300,000) and about another $100,000. He managed to recover almost all of it.
The nightmare for this lady began with a greedy person’s desire to rake in her assets. Her fate had been sealed by a Nevada notary’s ho-hum indifference to his duties. However, when James got involved, he went straight to the notary and didn’t let up until he made certain the notary accounted for his part of in the scheme, as well. That situation ended well, but most do not. Please do your part to protect our vulnerable citizens by taking a few extra minutes to make sure they understand that can see and read the documents they are signing.
For more tips on working with aging signers, refer back to the article from last week – Part 2 – Notarizing Wills.
What Powers of Attorney Look Like
Although notarial acts require the same basic steps every time an act is performed, new notaries like to see the forms they will notarize before the appointment. I did a quick search and found sources of power of attorney forms quickly. You can do this, too, by searching on words like “legal aid power of attorney form yourstate” or similar keywords. Alternatively, you can go to a site called PowerOfAttorney.com that I discovered while preparing this article; try looking up forms from your state.
Note: I am not suggesting these are proper legal forms, just that you can see examples of various types of POA documents. I am also not suggesting that you provide these forms to people requesting your services! We aren’t lawyers and we don’t know what forms will be appropriate for the situation.
My Best Tip on Handling POAs
Even if the signer has had the the power of attorney lying around for weeks before getting around to signing it, the signer almost always looks up at me right before signing to ask “What am I supposed to do here?” The question is about which boxes they should check. In Texas, there are many check boxes attached to a list of powers on the Texas statutory power of attorney form. It is confusing–checking one box at the top (or bottom) of the list, gives all powers to the agent. If the signer doesn’t want that, he or she must check each box individually.
It’s been said that I go overboard on avoiding the unauthorized practice of law because of situations like this. I’m careful in that I won’t describe the checkbox choice to the signer in my own words like I did just right above. I will say, “Take your time and read the document to make sure you have done what you need to do. Feel free to read it aloud.” It may take three minutes longer, but this is my habit to direct the signer to read what the document states rather than me injecting my “spin” on it.
Be helpful by being patient and encouraging the signer to read the document. Learn to put the burden of descriptions and explanations on the documentation rather than trying to pull it out of thin air from your own words. In my opinion, it is better for the notary and the signer.
Next Week – Part 4
Now that you have learned your way around a power of attorney, we’ll soon be talking about what it is like to see one in action at a loan signing!
Next week, our series continues with tips for handling signatures on real estate or loan documents when there is an agent or attorney-in-fact signing on behalf of a principal.
If you are a new notary, you may have questions about this, for instance —
- Should you ask to see the POA?
- How should the signer’s signature be written?
- What will the notarial certificates look like?
Post your questions and comments below! See you next week!
In case you missed the previous articles —
- Part 1 – Introduction to Wills and Estate Documents for Notaries (PLUS MARKETING TIPS for the fall!)
- Part 2 – Notarizing Wills