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Q&A: Powers Of Attorney, And How To Handle Them

Whether a signer seeks a power of attorney (POA) for another person or is signing on behalf of a principal, powers of attorney add an extra layer of complexity to notarizations. Because it’s tempting for a dishonest person to abuse their positions when acting as another person’s representative, Notaries need to be especially alert for problems when notarial acts involve powers of attorney. The Section spoke with Bernard A. Krooks, founding partner of Littman Krooks LLP and past president of the National Academy of Elder Law Attorneys, to answer questions Notaries have asked about notarizations involving POA documents and representative signers.

Many states don’t require signers to show Notaries proof they have power of attorney when signing on behalf of another person and having their signature notarized. Do you recommend that Notaries ask to see evidence a signer has power of attorney anyway, even if that’s not required by state law?
Any time you’re asked to notarize a document, you not only need to see the signer’s ID but if they are acting on behalf of someone else, you should ask to see the document giving them that authority. I would recommend going even farther and also ask the signer to sign an affidavit that the power of attorney is still in force and in effect.

A Notary recently called the NNA about an unusual situation involving a POA. The signer wanted to use an existing power of attorney to sign and have a document notarized granting herself expanded authority over her mother’s affairs. Can a signer use a power of attorney to increase their own representative capacity? Is it appropriate to notarize in this situation, or should the Notary refuse?
The signer cannot do that. The only person who could expand the signer’s original power of attorney would the principal — the mother in this case. The agent can’t expand her power of attorney herself. She can delegate some powers to others if the original document authorizes doing so, but can’t add powers to herself.

What are danger signs Notaries should look for if an elderly signer asks for a power of attorney to be notarized and the designated representative is present?
It’s certainly not uncommon for people to take care of estate planning or powers of attorney in the company of friends or relatives. In many states, including New York, the agent is now required to sign the power of attorney document so it’s typical for the person named as the agent to be present. But if the Notary observes the signer appears to only be signing to appease the agent — for example, the agent says to the signer “I won’t take you to the doctor any more if you won’t sign this,” — that’s coercion or fraud. If a Notary sees this, the Notary needs to step back, ask the would-be agent to leave the room and talk to signer alone to ensure that the signer is willing.

16 Comments

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judith ortiz

25 Jul 2014

Can poa agents be added if the primary agent's health has become compromised and the principle is not able to .ale her own decisions?

National Notary Association

25 Jul 2014

Hi Judith, Whether a person can legally be granted power of attorney or not would be a legal question which would need to be answered by a qualified attorney.

Leslie Roden

28 Jul 2014

How does the POA agent sign? Do they just sign their name or do they have to add special wording to there signature " on behalf of" or something of that nature?

National Notary Association

30 Jul 2014

Hello Leslie, thanks for your question. A person with power of attorney normally indicates that they are signing as "attorney in fact" for a principal. Here's two common examples how a power of attorney might be signed, where John Doe has power of attorney to sign on behalf of Mary Roe: "John Doe, attorney in fact for Mary Roe, principal" "Mary Roe, by John Doe, attorney in fact" It's important to remember that because the attorney in fact is the person who appears before you and signs the document, it is the attorney in fact's name that is entered in the certificate wording-not the principal's. More information on handling powers of attorney is available in our June 2014 magazine Beyond The Basics article, page 23. If you're an NNA member, you can log in to read the article at http://www.nationalnotary.org/knowledge-center/news/the-national-notary. Thanks and have a great day.

Connie Sinn

13 Aug 2014

Do I have to have an attorney present when signing a POA in front of a notary or do I just need a witness?

National Notary Association

13 Aug 2014

Hello Connie, Unfortunately, we can't provide legal advice regarding the requirements for preparing a power of attorney document. To find out if you require a witness or attorney present when having a power of attorney document prepared and signed, we recommend consulting with a qualified attorney.

Abbey

14 Aug 2014

We got a POA onloine and my husband signed it before we realized it had to be notarized. will anyone still notarize it?

National Notary Association

14 Aug 2014

Hello Abbey, Whether a previously written signature on a document can be notarized depends on the type of notarial act requested. If a Notary is asked to acknowledge a signature, the signature may be written prior to appearing before the Notary, but the signer must appear in person and provide satisfactory proof of identity. If a Notary is asked to perform a jurat, the signature must be written in the Notary's presence. Because nonattorney Notaries may not advise you on legal requirements for documents, you may wish to consult with a lawyer to determine what type of notarization is required for the signature on the power of attorney and whether the document will need to be re-signed in the presence of a Notary Public.

Jason

03 Nov 2014

Can I notarize a copy? Person emailed me the POA and I printed it out.. Can I get that copy notarized or does it have to be an original?

National Notary Association

03 Nov 2014

Hello Jason, To help us better answer your question, can you please tell us what state you are commissioned in?

Tarek Chami

26 Dec 2014

Does Michigan require a signers to show Notaries proof they have power of attorney when signing on behalf of another person and having their signature notarized?

National Notary Association

30 Dec 2014

Hello Tarek, I forwarded your question to Bill Anderson, our VP of Legislative Affairs. Here's his response: "To my knowledge, Michigan Notaries do not have a duty to obtain proof that a person is the attorney in fact for a principal signer. Following are the relevant statutes: 565.264. Certificate of person taking acknowledgment. Sec. 4. The person taking an acknowledgment shall certify that the person acknowledging appeared before him and acknowledged he executed the instrument; and the person acknowledging was known to the person taking the acknowledgment or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument. This statute basically states that in taking an acknowledgment, a Notary must certify that the Notary identified the signer as the person who executed the document. 565.266 Acknowledged before me, meaning. Sec. 6. The words “acknowledged before me” means: (a) That the person acknowledging appeared before the person taking the acknowledgment. (b) That he acknowledged he executed the instrument. (c) That, in the case of: (i) A natural person, he executed the instrument for the purposes therein stated. (ii) A corporation, the officer or agent acknowledged he held the position or title set forth in the instrument and certificate, he signed the instrument on behalf of the corporation by proper authority and the instrument was the act of the corporation for the purpose therein stated. (iii) A partnership, the partner or agent acknowledged he signed the instrument on behalf of the partnership by proper authority and he executed the instrument as the act of the partnership for the purposes therein stated. (iv) A person acknowledging as principal by an attorney in fact, he executed the instrument by proper authority as the act of the principal for the purposes therein stated. (v) A person acknowledging as a public officer, trustee, administrator, guardian or other representative, he signed the instrument by proper authority and he executed the instrument in the capacity and for the purposes therein stated. (d) That the person taking the acknowledgment either knew or had satisfactory evidence that the person acknowledging was the person named in the instrument or certificate. This statute says that the words “acknowledged before me” in an acknowledgment certificate mean that a person signing as POA executed the instrument by proper authority as the act of the principal signer. So, part of the attorney in fact’s acknowledgment to the Notary is that the AoF executed the document with proper authority. In other words, the AoF must acknowledge this; the Notary has no duty to obtain any proof, but is required to obtain the AoF’s acknowledgment."

Angela Naatz

28 Jan 2015

When notarizing a POA, Can I use the California All-Purpose Acknowledgement for a POA or do I have to use the POA form (4307)? Which is best? Thank you!

National Notary Association

28 Jan 2015

Hello, When performing any notarial act in California, you would need to use the appropriate wording as set by state law. If you are performing an acknowledgment that will be filed in California, a jurat or a proof of execution, the certificate must include the new notice wording that took effect Jan. 1.

Rich

17 Mar 2015

I had a POA written for my mother online. The document was signed by her, in front of two witnesses and myself. We were under the impression that it did not need to be notarized at the time. If I would like to have it notarized now will everyone have to be present?

National Notary Association

17 Mar 2015

Hello Rich. I apologize, but determining what witnesses must be present for a signature on a power of attorney document is a legal question we can't answer. You would need to contact an attorney or the appropriate receiving agency for instructions on this matter.

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