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What Would You Do Answers: The Case Of The Husband’s POA And Divorce

divorce-resized.jpgLast week, we shared a real-life scenario in which a Notary was asked by a customer to notarize two signatures. The customer claimed to have power of attorney for his wife and needed to sign a document twice — once for himself, and a second time on his wife’s behalf — and have both signatures notarized. However, when the document was presented, the Notary saw it was a divorce settlement between the customer and his wife.

What Our Notaries Said

Many Notaries expressed concerns about the situation because the customer was seeking to sign for both himself and his wife on a divorce document and raised concerns about possible fraud.

“I would be uncomfortable performing this type of notarization,” said Mildred Cooke. “Without being able to speak to the wife for verification, a divorce settlement seems self-serving on the husband’s behalf.”

“I would not proceed,” said Notary Diane Hilbun. “I feel that him signing for his wife would be potential forgery.”

Some Notaries said they would refuse and direct the customer take his document to be notarized at his attorney’s office instead. Others were willing to notarize if the husband showed them proof of his power of attorney, or if they could speak to the wife face to face first to confirm her wishes.

“If the husband can produce a notarized, recorded power of attorney which grants him the power to act for his spouse in any and all situations, then I would feel comfortable notarizing the document for both parties,” Linda Mansfield said. “However, if such a document cannot be presented, I would courteously decline.”

Rod Davison said he would notarize the husband first’s signature — but not the second signature on behalf of the customer’s wife.

But some Notaries felt that refusing would be an inappropriate legal judgment about the customer’s document and power of attorney status. “The validity of the divorce document or the POA is not my concern,” said California Notary Katie Perry. “In California, we are not required to verify the status of the attorney in fact.”

“Sometimes it is difficult for us as Notaries Public to remember that the content of the document is not our problem,” said Lynn Gidlow. “If there is a legal problem with the document, it would need to be settled in a court of law.”

Standards Of Notary Practice For A Power Of Attorney 

This is a challenging situation, and how you handle it depends on where you are commissioned. Different states have different laws regarding powers of attorney and signers acting as attorney in fact for another individual.

In Hawaii, Idaho or Minnesota, the husband would be required to present the Notary with proof of his authority to sign on his wife’s behalf. In these states, the Notary would have a basis for refusal if the husband could not provide the required proof of power of attorney.

However, Kansas, North Carolina and California — where the actual situation took place — do not require Notaries to verify a signer’s representative status. The California Notary who received this request therefore couldn’t refuse the notarization on the grounds that the signer lacked documentation for the power of attorney. A Notary does not have the training or authority to make a legal judgment whether the divorce document is valid or not — that would have to be determined by a court of law. Unless another clear-cut reason for refusal presented itself, a California Notary would have a duty to proceed with the notarization (see Government Code Section 8205 – “It is the duty of a notary public, when requested… to take the acknowledgment or proof… of other instruments and writing executed by any person…”).

However, certain states provide more leeway for a refusal. Texas Notaries may refuse a request if the Notary has reason to believe the document will be used for illegal purposes. In states that have enacted the Revised Uniform Law On Notarial Acts (RULONA) such as Colorado, Montana, Pennsylvania, Oregon and Washington, Notaries are permitted to refuse a notarization request for any reason, as long as the refusal does not violate the law.

Whether a Notary decides to perform or refuse the notarization in this situation, it would be a good practice to document the reason why the decision was made, along with any statutory citation or reference the Notary’s choice was based on, in the Notary’s journal. That way, if the Notary’s action is challenged at a later date, the Notary has evidence showing that the Notary exercised reasonable care in following state law.

David Thun is an Associate Editor at the National Notary Association.

 

12 Comments

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Mark Joyce

24 Jun 2019

For me the question would be, how do I know if the POA has been rescinded. Given the the document is question if the divorce document, I would think there is a higher likelihood of a revocation in that case than perhaps in selling a vehicle.

John Clark

24 Jun 2019

I find it remarkable how some notaries misconstrue "the unauthorized practice of law" as requiring them to keep their heads vacant of thought. The notary, when meeting with a husband and wife who present valid IDs and wish to execute a power of attorney, has a duty to withhold his or her opinion on the wisdom of their doing so. If asked to explain the form, the notary may go no further than pointing to the text of it, and suggesting legal counsel in case of doubt. The notary must also complete that section of the form and make journal entries as per state law. Now if an ID appears to be tampered with, or one of the parties is intoxicated or speaks in threatening tones, then the notary is not "practicing law" by declining to proceed. The law itself requires us to apply sound judgment in verifying each party's identity, competence, and volition for this act. Now suppose that some man shows up with a divorce settlement paper, tells you that his wife is bedridden, claims to have her power of attorney but can't show it to you, and is himself a named and interested party in the document. Of course you would decline to "practice law" by explaining to him particularities of divorce cases as best you know. You certainly are within your rights to take no part in what looks for all creation like an act of fraud. If you notarize it regardless and are then called to account for yourself, the reason will be that it WAS fraud. What is your excuse then ... the law compelled you to play as totally dumb as you did? Better make very sure of that first.

larry lewis

24 Jun 2019

Even if the husband had power of attorney this is clearly a conflict of interest and should not be notarized without the wife being ther

CARMEN BIANO

25 Jun 2019

In California, it would be up to the second notary to make his/her determination on refusing to do the notary. California does not allow for the same notary for both parties.

Eileen Roe

25 Jun 2019

It's not the Notary's job to research the POA to see if it has been rescinded. What if a "husband and wife" who executed a POA are not even a married couple? You don't ask for their marriage certificate. When someone signs a grant deed, it's not your job to conduct an investigation to see if he or she actually owns the property listed on the deed. We don't confirm the titles of people claiming to be corporate officers before they sign business forms. We don't ask for childrens' birth certificates when their "parent" gets a consent for medical treatment letter notarized. You're making the situation overly complicated by second-guessing all the parties involved.

Lisa Miller

26 Jun 2019

I would be extremely uncomfortable notarizing the document. Generally personal appearance is required by persons signing the document. Granted we aren’t concerned with legalities of power of attorneys, however to me it’s s red flag he’s signing for her. You don’t know if she is in agreement with signing a divorce document. In my opinion, if you believe there could be potential fraud, you shouldn’t do the notarization.

Robert Miller

26 Jun 2019

Doesn’t a signer has to be present even if someone else will be signing for them. You do need to attempt to determine if they are being coerced.

Luz Rose

27 Jun 2019

Yes, we as Notaries in California, can't read the doc, just verify that there are not blank spaces, and we are notarizing the signatures only!

Victoria Jasperson

27 Jun 2019

I would just notarize his signature because he is present but I would refuse the wife's signature even with a POA because you don't know when that was signed by the wife or even signed by her. I would state to him that I would be happy to notarize her signature if she came in person. She could have it signed separate of his signature. In fact I have had just one or the other come in and sign their signature to be sent into their Attorney and the other spouse has it done separately.

Patricia Stone

28 Jun 2019

I would if the husband had both documents to show he had power of attorney and I'd s

Melanie

16 Sep 2019

@CARMEN BIANO: "In California, it would be up to the second notary to make his/her determination on refusing to do the notary. California does not allow for the same notary for both parties." Where does it say that CA does not allow for the same notary? I am a California notary, and I don't recall ever reading that the same notary cannot be used for different signers on the same document. Can the NNA please respond to this comment.

National Notary Association

20 Sep 2019

Hi Melanie. You are correct that a California Notary may perform services for more than one signer. A CA Notary may normally perform any lawful and reasonable request for notarization unless the Notary has a disqualifying interest in the document or transaction.

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