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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 Notary Bulletin 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.

51 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.

Judy L. Reidy

20 May 2015

I am a real estate agent, and I have a contract to sell a home. My seller is elderly and living in the memory care unit of an assisted living facility in Texas. She had a POA drawn up in 2006, giving her daughter, who lives in Florida, all rights and privileges with no exceptions. The daughter in Florida cannot find the original copy of the POA. The title company which is handling the closing on selling the house the elderly seller has not lived in for years insists on having the original. Further, she refuses to close unless she goes to the seller herself and asks her questions about selling the house before she will notarize a new original POA. Can she do that???

National Notary Association

20 May 2015

Hello Judy. I'm sorry, but because this is a question about an individual title officer's actions during a closing, not notarial procedure, we would not be the right organization to answer this question. You may wish to contact an official at the title company if you have questions about their policies.

marie

02 Jun 2015

Hello I'm a notary kn Texas. I nototized a PO A.my mistake was signing my name on the principal line.The principal passed away before I could correct mistake.Now the bank willnot accept POA from daughter to withdraw money due to my signer instead of her mothers signature. How can I fix mistake? Please helphttp://bible.com/apphttp://bible.com/app

National Notary Association

02 Jun 2015

Hello Marie. To change or correct a completed power of attorney document, you would need to contact an attorney for legal advice and guidance.

Robin

04 Jun 2015

Hi, I'm a notary in CA. I have someone signing a home loan with a POA for her mom and her dad. If she has to sign twice on a form like the DOT (once for mom, once for dad), do I need to complete two certificates?

National Notary Association

04 Jun 2015

Hi Robin. POAs and home loans may have additional complications when notarizing. I've forwarded your question to our Information Services Team and will post here when we receive a response to your question. Thanks for your patience.

National Notary Association

04 Jun 2015

Hi Robin. Here's the response to your question from our Hotline Team: "The Notary can complete 1 acknowledgment with the signer signing as POA, multiple times. In the acknowledgment wording the Notary will indicate that 1 person appeared, with signing multiple times in multiple capacities. Below is an example of how the part of the acknowledgment will read. The areas highlighted, the Notary will leave plural: “he/SHE/they executed the same in his/HER/their authorized capacity(IES), and that by his/HER/their signature(S) on the instruments the person, or the entity upon behalf of which the person acted, executed the instrument.” If the Notary is using our certificates, they can also fill out the optional section to include the parent’s names and the capacity in which the signer signed." I hope this information helps answer your question. If you have any additional questions on this topic, Robin, please feel free to contact the Hotline team at hotline@nationalnotary.org.

Robin

05 Jun 2015

Thank you for the response - that is very helpful.

Oscar

20 Jun 2015

A poa was signed by individual appointing an institution. Also a affidavit of correction was notarized and signed by poa. Would I be able to sign as poa on the documents? And on the affidavit could I notarized it, and some one else sign as poa? Is this legal?

National Notary Association

22 Jun 2015

Hello. You may not notarize a document in which you are named or have an interest. If the document gives you power of attorney, or you are signing the document as attorney in fact representing another signer, you may not notarize that document due to conflict of interest.

Elsa

13 Jul 2015

In California...wife has a general POA to sign on behalf of deployed husband. Wife wants to notarize a loan document where she will sign as the spouse and ALSO on behalf of her husband by POA. The loan is from the husband's retirement fund (TSP). Is it legal for her to sign for herself and for husband by POA?

National Notary Association

15 Jul 2015

Hello. Please contact our hotline team at hotline@nationalnotary.org or 1-888-876-6827 for assistance with this question. Thanks.

Ray M.

01 Sep 2015

I am my mothers Durable POA in Massachusetts. I cannot find my notarized document. The attorney who notarized it is now disbarred from practicing in Massachusetts and cannot be contacted. Is there a Massachusetts Government Agency who keeps these records that I can obtain the document from? Thanks

National Notary Association

02 Sep 2015

Hello. If you or the attorney filed a copy of the notarized document with a government agency, you could contact that agency to ask if they have a copy available. However, if the document was kept by the attorney without being filed anywhere, a government agency wouldn't have a copy.

Amy

11 Sep 2015

My father-in-law is the named agentagent (attorney in fact) in a poa. The person executing the poa wants to know if I can notarize it. I have no relation to the person signing the poa. Is it ok to notarized if my father-in-law is the soon to be agent? Also, I am in Texas.

National Notary Association

14 Sep 2015

Hello. The Texas Secretary of State's website states that there is not a specific prohibition against notarizing for a spouse or relative. (http://www.sos.state.tx.us/statdoc/faqs2300.shtml#np11) However, if you would receive some potential benefit from this transaction, or a possibility that your relation to your father-in-law might cause the document's validity to be questioned at a later date, then another unrelated Notary should notarize the signature instead.

jack gautreaux

28 Sep 2015

can we make white out changes and add new agents to an existing notarized POA form. We need to replace 2 agents that have passed away.

National Notary Association

28 Sep 2015

Hello. Nonattorney Notaries cannot offer legal advice to signers, answer legal questions or prepare or alter legal documents on a signer's behalf. The signers would need to contact an attorney for assistance in changing a power of attorney form.

See

29 Sep 2015

Can a POA being signed in CA be use in NC? I'm in the process of closing and NC required that if a couple is legally married, both parties from the marriage have to be presenCe I have my POA but it was signed in a a. Do tall think that the title company would be ok with it being signed from CA?

National Notary Association

29 Sep 2015

Hello. You would need to contact the title company to ask if the document would be acceptable to them.

Gayle

02 Oct 2015

In 2012 my mom had her will and POA drawn up. She never got around to having her Power of attorney notarized. Can she still use the same papers or does she need to have her attorney draw up new ones with the current year on the signing page? Right now it has the year 2012.

National Notary Association

02 Oct 2015

Hello. We're sorry but that's a legal question we can't answer. You would need to contact a qualified attorney to assist you with this matter.

Connie Steidl

20 Oct 2015

The notary that signed my husbands DPOA left of the Jr. of my husbands name. Now my husband's dementia is too bad for him to sign a new one. The bank has denied it and now I can not get the equity from our house to continue his care when his long term care insurance runs out. Is the any way to correct this like maybe an affidavit from the notary that signed it?

National Notary Association

20 Oct 2015

Hello Connie. We're very sorry, but since this is a legal issue we are not authorized to provide advice on this topic. You may wish to contact an attorney to ask if there is there is an acceptable alternative to correct the error on the document in question.

Mary Beth

12 Nov 2015

The first page of my mother's durable power of attorney only had my first name on it. The document was notarized, but the bank would not accept it as my last name was not on the first page. Can I make an adjustment and resubmit the document to my mother's bank, or do I have to draw up a whole new document. She lives in Michigan and I live in Wisconsin.

Colleen

13 Nov 2015

On the actual signature line, does the power of attorney just sign his or her own name (as long as under the line it says the principal's name under power of attorney by the agent's name)? I am trying to figure out exactly what the agent writes on the line.

National Notary Association

17 Nov 2015

Hi Colleen. Please see this article for more information: http://www.nationalnotary.org/notary-bulletin/blog/2014/09/four-questions-notaries-powers-attorney

Sandy

13 Nov 2015

Hi, I'm a notary in California. I need to notarize a POA for insurance policy. There are 3 parties: owner of the policy, insured and attorney in fact (who will act on behalf of the owner). Who should appear in front of me for acknowledgement? Is the insured and attorney-in-fact names also need to be on the acknowledgment?

National Notary Association

17 Nov 2015

Hi Sandy. We're sorry, but these are legal questions we're not authorized to answer. The signer will need to contact a qualified legal professional such as an attorney for instructions how to prepare the document and who needs to sign it.

Carolyn Willis

15 Nov 2015

is a poa signed in Indiana good in Tn.

National Notary Association

16 Nov 2015

Hello, Carolyn. We're sorry, but that's a legal question we aren't authorized to answer. You would need to contact an attorney for assistance.

Keisha

20 Nov 2015

My brother works overseas in Kuwait and he has made me POA. He has papers for a child support case that needs to be notarized, but we have called several places that won't accept the POA. Will it be possible to get the papers signed by me on his behalf I can I sign my name on the papers or does it have to be his name. I don't know what to do about this situation. He can't just fly here for a weekend it's not that easy.

National Notary Association

23 Nov 2015

Hi Keisha. We're sorry, but questions regarding the legal format of a power of attorney would need to be answered by a qualified attorney.

Catherine

12 Feb 2016

In the state of NY does a lawyer need to be present in order for me to notarize a Power of Attorney? Also what if the person that is giving power of attorney can't sign their name, but can give verbal acknowledgement that they want to do this; can someone else sign on their behalf? Thanks

National Notary Association

12 Feb 2016

Hello Catherine. These are two separate questions. Regarding your first question, New York Notary laws do not state that an attorney must be present when a Notary is asked to notarize a signature on a power of attorney document. Some powers of attorney may have specific requirements but it is the signer's responsibility--not the Notary's--to meet any special requirements for preparation and signing that a power of attorney document may require. A nonattorney Notary should never advise a signer regarding the preparation and legal requirements for a power of attorney, as that would be the unauthorized practice of law. Regarding your second question, no, New York does not authorize a third party to sign a document during a notarization at the verbal instruction of a physically incapable signer.

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