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May 21, 2014

Notarized Power of Attorney

Filed under: Power of Attorney — Tags: — admin @ 10:28 am

How do I get a notarized Power of Attorney?

It is a common thing to need a Notarized Power of Attorney. The problem is that many people don’t know where to go for help. Step one is that you need an actual Power of Attorney. Be careful. If you have the wrong Power of Attorney form, it might not be acceptable to whomever the custodian of the document is, or to the courts. I am not an Attorney and can’t advise you, but I suggest you consult an Attorney first to draft a Power of Attorney for you.

Step 1.
Get your Power of Attorney drafted by an Attorney or someone who your Attorney recommends.
If you use a standardized form from an office supply store, make sure you get it all filled out before calling the notary.
You will need to have an Attorney in Fact (Agent or Grantee,) a Grantor, and you need to specify what powers you are granting, and for how long, and under what conditions. It’s complicated and critical, which is why you need an Attorney at $200-$400 per hour!

Step 2.
Find a notary. Any notary can notarize a Power of Attorney. They can also notarize a Durable Power of Attorney, or notarize a Health Care Power of Attorney. Some states even allow the Notary to make certified copies of a Power of Attorney. 123notary offers a wide selection of mobile notaries who can come to your home, office, hospital room, or jail cell and get your Power of Attorney notarized. Make sure you have current photo-ID from a government agency.

Step 3.
Once your POA is notarized, you might need to submit it to a particular party, or have it registered somewhere. Ask your Attorney. Keep in mind that banks often have their own forms for Banking Power of Attorney which are often very simplified forms on card stock which would be significantly below the standards of an Attorney. But, if it is for their bank, they have the right to request any type of form they like. Just make sure your Attorney doesn’t object too terribly much. It’s complicated! Be prudent and consult the right people and Attorney before making your decision what to do.

Final Note
Don’t ask legal questions to Notaries. First of all, they are not trained to answer legal questions. Secondly, they are not allowed by law to answer legal questions. Get your legal questions out of the way with your Attorney before you make your initial call to the notary. Nothing is worse than keeping a notary on hold while you resolve issues that a responsible person would have resolved long before they called in a notary! Additionally, don’t ask a notary to draft documents unless they are authorized to do so based on some other qualifications they might have that are separate from their notary commission which does NOT authorize them to draft any legal document in most states.

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November 28, 2013

Who are all the parties involved in a Power of Attorney?

The Principal (also called the grantor) is the person who needs an agent to act on his/her behalf in dealing with legal, financial, and/or health care issues that ultimately involve signing documents, checks, and so forth.
The grantor grants power to the Attorney in Fact via the Power of Attorney document; the Attorney in Fact (also known as the agent or grantee) may then make decisions and sign on behalf of the grantor.

The Attorney in Fact (also called the agent or grantee) is the person designated in the Power of Attorney to act solely on behalf of the principal, avoiding any conflict of interest or personal considerations. The Attorney in Fact acts as a fiduciary, someone who can take care of money for the principal and whose judgment, advice, and assistance can be relied upon. If the fiduciary is, for example, the guardian of an estate, he or she must file a fiduciary bond with the probate court or judge. The Attorney in Fact may transact purchases and sales and financial affairs, and execute agreements.

An Attorney involved may be a family Attorney who drafted the Power of Attorney or one who represents the principal in other matters; by contrast, the Attorney in Fact is often a family member, and not an Attorney who represents the principal for a fee. All rights granted to the Attorney in Fact are set forth and may be limited at the beginning by the grantor; thus, the necessity of having a good Attorney draw up the Power of Attorney. The Attorney may be involved in creating legal remedies or documents that the Attorney in Fact will execute. There may also be an Attorney representing whatever entity (e.g, a bank) the Attorney in Fact works with on behalf of the principal.

The Notary may be involved in notarizing a Power of Attorney at a hospital signing. In this case, the notary may need to question the grantor sufficiently so that he or she is certain the grantor is doing this of his or her own free will and understands the nature of the powers granted to the Attorney in Fact, and the notary must record any observations in the notary journal. As a notary signing agent, the notary must also ID an Attorney in Fact who acts on behalf of the borrower at a signing. In such a case, be advised that the notary’s job is to identify the signer, not to verify his or her capacity http://blog.123notary.com/?p=2632 .

You might also like:

Power of Attorney: types often created
http://blog.123notary.com/?p=6732

Information about various notary procedures
http://blog.123notary.com/?p=2268

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August 15, 2013

Power of Attorney: Types Often Created

Filed under: Power of Attorney — Tags: — admin @ 12:45 am

POWER OF ATTORNEY: TYPES OFTEN CREATED

A General Power of Attorney is a broad type of POA document, and gives the Attorney in Fact the power to execute, on behalf of the grantor, both legal and financial agreements that are binding.

A Durable Power of Attorney is essentially a General Power of Attorney but, as the name suggests, is meant to be of a permanent nature because the grantor has agreed in writing that he or she wishes the Power of Attorney to remain in effect should the grantor become permanently ill or disabled. Many financial institutions prefer this type of POA, and all fifty states recognize some form of Durable Power of Attorney. SEE BELOW “What rights does the agent or Attorney in Fact have?”

A Specific Power of Attorney (also called Special Power of Attorney) will be in force for a limited amount of time, or will delegate power to the grantee or agent for only a specific instance, such as the signing of certain papers at a location the grantor or principal cannot travel to due to a physical ailment.

A Medical Power of Attorney grants the Attorney in Fact the right to make decisions about medical treatment or health care on behalf of the principal or grantor, perhaps during an illness or for a period of time following an accident.

A Springing Power of Attorney goes into effect at some date or circumstance in the future, for example when cancer spreads so as to disable the grantor, and the POA remains in effect until the grantor’s death.

A Power of Attorney for Care of a Minor Child is a document that temporarily assigns another person the right to make health care or legal decisions on behalf of a child who may be in their care. Many states limit the term of this Power of Attorney to six months, after which time guardianship must be sought if the parents cannot care for the child for any reason (disability or death).

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You might also like:

Index of posts about Power of Attorney
http://blog.123notary.com/?p=20255

Index of posts about common types of notarized documents
http://blog.123notary.com/?p=20258

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July 9, 2013

The Power of Attorney was rejected by a bank

I was reminded of this situation as I looked through our retweets. Apparantly, our followers like tweets about Powers of Attorney. So, I decided to come up with some real stories about Power of Attorney signings that can inform and inspire notaries everywhere.

It happened many years ago. I remember many of the details. I went to someone’s home to notarize a Power of Attorney for banking. They had a fancy Attorney draw up the document and it looked very professional. Please note: non-Attorney notaries are probably NOT ALLOWED to draft up Power of Attorney documents or other legal documents in most if not all states. I had notarized many types of Power of Attorney documents in the past. Durable Powers of Attorney, Health Care Powers of Attorney, Living Wills, Limited Powers of Attorney, Correction Agreement Power of Attorney, and many others too. Yes, a Living Will is a form of Power of Attorney where it gives someone authority to make medical and other decisions for the principal should they become incapacitated.

In any case, I notarized this Power of Attorney, and the client took it to his bank, and it was rejected. But, why? Nothing was wrong with the document or the notarization. So, what was it? The bank had THEIR OWN form of Power of Attorney. We learned the hard way. After spending hundreds on an Attorney and $50 on me, he now knew what to do. So, I had to meet the client at the bank. I forget which bank it was. One of the big ones. Perhaps Bank of America, Chase, or some other big name. They had a form on card stock that had a carbon copy. There was no room to put my stamp. It was idiotic. They wanted the stamp on the form itself and no Acknowledgment Certificates stapled on. So, I filled out the Acknowledgment wording and notarized the form. Voila — acceptable.

So, the lesson for today is — what the law says is acceptable is very different than what the document custodian (the person receiving and keeping or holding onto the document) might see as acceptable. Sending notarized documents to China, the stamp has to be on the document, but try explaning to them that the California Notary Verbiage needs to be on the document too if they want their stamp. Good luck. Warn your clients of the fact that their bank might not accept the Power of Attorney. The moral of the story is to ask the document custodian what type of power of attorney THEY want.

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You might also like:

The Power of Attorney was rejected 2017
http://blog.123notary.com/?p=18954

Index of posts about Power of Attorney
http://blog.123notary.com/?p=20255

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June 16, 2013

Making family members leave the room

I got a call from a social worker at a convalescent home. Seemed the daughter needed a POA signed for her father. I gave him my fee and asked him all the necessary questions. You know, does the person signing have ID, can they sign their name and are they under the influence of any mind altering medication. He assured me that we were a go on all accounts except for one he needed to let the family know my fee and would get back to me shortly . A few minutes passed and I got the return call and we were a go. We scheduled the day and the time. He let me know that it was going to be 1 signature. A POA. (power of attorney)

I arrived at our scheduled time and I met the daughter and the other family members in the lobby, the daughter let me know that she was not happy with the facilities and wanted to get the POA so that she could move him. He went on to tell me that his wife was mistreating her father and she needed to have him moved out of the wife’s reach. She handed me the POA I looked it over briefly and we proceeded to the signers room. We entered the room and he was conversing with I presumed other family members or friends and at this point I didn’t really know who was who. I introduced myself to him and the daughter began to tell him what I was doing there and what she was planning on doing. One of the persons in the room I found out at that moment was the wife. She asked us both in a cautious tone ‘what is going on here’?. There was dead silence so I took over I explained to the signer that the daughter had asked the facility to call me on his daughter’s behalf. I asked him if he’d prefer me to continue with the others in the room. He said no and then I asked everyone to give a few minutes in private. He wanted only his step-daughter to stay. (Funny, he seemed to like her better than his own flesh)

After everyone else was gone .I told him what his daughter wanted and he became livid. He muttered that he didn’t want to sign anything. He said that he didn’t feel that he needed a POA. After I had spoken with him for a few minutes I also felt that he was in good sound mental health and didn’t need one as well. He asked me did he have to sign and I told him certainly not. He was to say the least bewildered and seemed bothered by the whole thought of it. I let him know that his daughter was under the impression that he was being mistreated (information that she said that he had given her) that she had had documents prepared on his behalf. She had not discussed any of this with him.

After our little chat, we asked everyone to come back into the room and I told the daughter that he has decided not to sign anything at this time and I asked “Now who is going to pay me?”. Everybody looked around (you could have heard a pin drop it was so quiet) but after a minute or two the daughter finally spoke up and said “Of course I will and handled me my travel fee” I prepared a receipt and thanked them all and went on my way.

Now this could have turned a different way a turn for the worse. But I was lucky. I got my fee and I took control and made sure that the signer was either comfortable signing or not. In this case he was not. IMO, I felt the daughter was over stepping her bounds. I know she may have had her fathers best interest (or just maybe his money as a little birdie told me he was loaded) at heart but although I did not say (nor could I say) California is a community property state and the wife has the first and final say. Sadly for the daughter, she probably doesn’t know it but legally she has no rights over anything to do with her fathers affairs. He had been married to the wife for over 35 years. And what she says goes whether any of us like it not….I thought to myself the wife is going to need a good lawyer because I got the impression that the daughter was NOT stopping here.

Until next time…be safe

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August 27, 2012

Notarizing Documents for the Elderly

Notarizing for the elderly: Making a difference

Notarizing documents for the elderly can sometimes be a precarious task. At best, it can also be very rewarding, a chance to save senior citizens from poor medical or financial decisions. Some of our notaries have recently done a great service by scrupulously looking out for this fragile population and speaking out in order to protect them.

A California notary tells us, “I was going to a signing, and I really didn’t have any information about the borrower. The caregiver for the elderly man answered the door, and said ‘Are you aware that Mr. Jones has Alzheimer’s? He thinks you are here to give him $3000. He was cleaning the house all night to impress you.’ Apparently, someone had called him from an Internet company and had gotten him to do the loan. The care attendant said she would have to call the man’s son. I left the loan documents with the man, and immediately called the loan officer. I said, ‘This man’s son has a power of attorney. If I hear of this man signing these documents himself, I will turn you in.’ I never heard from them again,” sighs the California notary, who knows to this day she provided an unanticipated service for Mr. Jones.

Another California notary from Oakland tells a similar story: he came to notarize a refinance, but the woman who owned the home did not want to sign. It turned out that the ‘relative’ who was claiming to have a valid power of attorney was not even related to the homeowner…but had somehow persuaded the lender that she had a POA–and was planning to drain $20,000 from the home and then put the woman in a nursing home. The notary got a bad feeling about all this when he first called to confirm the signing. The old woman confided in the notary her unwillingness to sign, and the notary, on a hunch, called the authorities. They arrested the “relative”…and an actual relative was called upon to assist. Luckily, the equity in the home remained intact, and our notary was very pleased. “It was just lucky that I realized what was going on,” he says, “and made the call. Some people might say it wasn’t any of my business. A notary actually is taken quite seriously as a ‘reporter’ in cases like this. I was glad I did what I did,” says our California notary.

“One man thought he was getting back $400 more on his loan than he actually did. When we went over the paperwork, he actually started crying. I was able to explain things to him, but he chose to call the lender and delay the closing…although he did end up closing that week. The lender did something for him, made some deal with him that made him feel better. Many elderly people feel they are being taken advantage of, and many are in a position of weakness. I see a lot of happy, wealthy elderly, some who own several houses in several parts of the country. I also see a lot of poor people who are elderly and who never recovered from 2008,” says one Hawaii notary with relatives in California. “We are trying to do more to protect them.”

A Hawaii notary in Honolulu who does a lot of notary work with the elderly tells us, “Sometimes at a hospital signing I have to determine whether or not the person knows what he or she is signing. I ask the person’s name and I keep asking questions. If the person does not know what he or she is signing, I leave.” Our astute young Hawaii notary adds, “There are lots of times there is a doubt as to the competence of the person, and you really have to be very sure. Your have to protect their interests. That is why it is good that California, for instance, just passed a new law regarding notarizing a power of attorney.” [see blog June 3 2012 “A New California Notary Law”]

Tweets:
(1) Notarizing documents for the elderly can sometimes be a precarious task; at best very rewarding
(2) “Are you aware that Mr. Jones (the signer) has Alzeimers? He thinks ur here to give him $3000!”
(3) Many elderly signers feel they are being taken advantage of, and that they have a weakness.

You might also like:

Power of Attorney at a nursing home
http://blog.123notary.com/?p=2305

Dragging the person’s arm: A signing for an elderly woman
http://blog.123notary.com/?p=610

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August 5, 2012

Power of Attorney and Verifying Capacity

Powers of Attorney and Verifying Capacity 

Recently, we had two notaries that had situations where they felt obligated to stick their head into other people’s business.  Both notaries were doing signings for an attorney in fact, and both notaries wanted to see the power of attorney to verify if the signer indeed had that capacity.  But, this seems to be going above and beyond the job of a notary public.  A notary’s job is to identify a signer, and make sure the signer really signed the document, keep a journal, and fill out certificate forms.
 
So, does the notary need to verify the capacity of the signer: i.e. as an attorney in fact?  In California, notaries are prohibited from identifying a signer’s capacity.  But, what about other states?  I have no idea!  Maybe our readers can comment. We will have a facebook discussion on this topic as well to stimulate dialogue.
 
I feel it is only the notary’s job to notarize the signature of the signer, and acknowledge that that particular person signed a document.  If that person claims to be an attorney in fact, that is their business. Whether the signature on the notarized document will be recognized in court as an official siguature of an attorney in fact is another story, especially if the “missing” power of attorney form doesn’t show up. I saw let the courts worry about authorization, it is beyond your job as a notary!

Tweets:
(1) When you notarize for an Attorney in Fact, is it your job to verify the signer’s capacity?
(2) It’s only the notary’s job 2identify the signer, not to determine if they’re authorized to sign in a particular capacity.

You might also like:

POA — proceed on alert
http://blog.123notary.com/?p=14661

Notarized Power of Attorney
http://blog.123notary.com/?p=9862

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November 14, 2011

Power of Attorney Signings

Power of Attorney Notary Signings
 
It is common for notaries to get a job notarizing a signature of a grantor on a power of attorney document.  It is also common for a signer who is the attorney in fact to sign documents in their official capacity as an attorney in fact.  The problems is that most notaries haven’t a clue how to handle this type of common, yet critical situation. 
 
Types of powers of attorneys
First of all, as a notary public, you are not required to understand the contents of the document.  For an acknowledged signature, the signer should be named in the document and should sign it.  Other than that, you just need to be sure the signer understands the document, and you shouldn’t have any indication that the document is fraudulent (how would you know anyway?).  Their are banking powers of attorney, durable powers of attorney, health care powers of attorney, and living trusts which are a sort of power of attorney. There are other types too, but these are the most common ones.
 
What does a notary need to know about powers of attorney?
You need to know who a grantor and grantee is.  You need to know who an attorney in fact is (= the grantee).  You need to know how the attorney in fact signs a document.  You need to know that California notaries must take journal thumbprints when notarizing signatures on powers of attorney.
 
 
Is the form I am using acceptable?
Notaries may NOT recommend particular power of attorney forms, nor should they assist in filling them out.  The notary should look for blanks, and refuse to notarize if there are any blanks in the document.  It is not a crime for a notary to have blank standardized power of attorney forms in their briefcase, so long as they make it clear that they are not giving legal advice and not recommending the use of those forms.  You might tell the client that they should check with the document custodian (whomever they are submitting the documents to), to see what type of paperwork they will accept.  What is legal, and what is acceptable to the recipient are often two different things.
 
Banking power of attorney
Most banks have their own power of attorney form which is on card stock and leaves about half an inch to squeeze your two and a half inch wide notary seal (how educated of them!).  If asked to notarize a banking power of attorney, just do what the client asks within the limits of the law, but for your knowledge, you should be aware that the bank may not accept a power of attorney that they didn’t draft and that the client might be advised to check with the bank before doing any business with a notary public. 
 
How does an attorney in fact sign?
The person who has been granted special powers from a power of attorney is the grantee or attorney in fact.  They can sign in two ways that I am aware of.  If the grantor is John Doe, and the attorney in fact is Sally Smith, here is how Sally signs on behalf of John.
(1)  John Doe, by Sally Smith, his attorney in fact
(2) Sally Smith, as attorney in fact for John Doe
 
Power of attorney documents at a loan signing
Whether or not the loan will be accepted is hard to say.  However, many lenders will require a copy of the power of attorney to accompany the documents. 
 
Acknowledgment Forms
Some acknowledgment forms allow the notary to identify the capacity of the signer.  One of the standard check boxes on an acknowledgment certificate form is for attorney in fact, and other corporate offices are sometimes mentioned as well.

You might also like:

Index of posts about Power of Attorney
http://blog.123notary.com/?p=20255

How do you get a Power of Attorney Document?
http://blog.123notary.com/?p=20785

Notarizing Documents for the Elderly
http://blog.123notary.com/?p=3334

Notarized Affidavits Information
http://blog.123notary.com/?p=1963

Bank of America Power of Attorney Form
http://blog.123notary.com/?p=21327

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