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States Revising Power-Of-Attorney Laws, Strengthening Notary Role

ApostilleThumb.jpgIn an effort to strengthen the reliability of powers of attorney, a growing number of states are enacting elements of a model law regarding these life-altering documents drafted by the National Conference of Commissioners on Uniform State Laws, commonly known as the Uniform Law Commission.

Michigan has become the latest state to adopt elements of the Uniform Power Of Attorney Act.

So far this year, Nebraska, Ohio and West Virginia also have enacted elements of the uniform law, joining about a dozen other states and U.S. territories.

Among other things, Michigan’s Senate Bill 92 details the circumstances under which Notaries may sign powers of attorney on behalf of individuals who are physically unable to sign for themselves. In order to do this, the Notary must abide by a specific procedure:

  • The principal must directly request the Notary to sign.
  • The principal must be in the Notary’s physical presence.
  • The Notary writes beneath the signature: “Signature affixed pursuant to section 33 of the Michigan Notary Public Act.”

The law also permits the Notaries to acknowledge the signature because they technically are notarizing the principal’s signature and not their own.

Under SB 92, a power of attorney must be notarized or signed in the presence of two witnesses, neither of whom is the attorney-in-fact. In the latter case, witnesses also must sign the power of attorney.

Powers of attorney are very sensitive documents because they allow a designated third party to control the affairs of the principal. They often are used to make decisions regarding real estate and other financial matters as well as medical care. Because of this, they often are misused.

Michael Lewis is Managing Editor at the National Notary Association.

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