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November 24, 2016

Photocopy of ID for a Power of Attorney?

Filed under: Ken Edelstein,Power of Attorney — Tags: — admin @ 11:38 pm

Photocopy of ID for a Power of Attorney?
Confession is good for the soul, though sometimes it might land you in the Pokey. With trembling fingers and much trepidation; I relate the following sad story. Before doing so, please understand that I receive many of my blog entries from what happened to me: http://kenneth-a-edelstein.com

It’s a close call, perhaps even a tie. No, I’m giving the Power of Attorney top billing for fraud potential, first runner up will be the Deed. I have heard the Power of Attorney referred to as “the cocaine of legal documents” – strong language indeed! With that, and the first paragraph as background:

The call comes in from a highly distraught caller, the parent is terminal. The sibling needs a Power of Attorney – urgently and quickly. It was difficult to obtain the information I require to determine if the request should be accepted. I don’t have “higher” ID requirements to process a Power of Attorney; to me a notarization is a notarization. Sometimes the methodology differs, but, basically we ID, witness signature, give oath, then complete notary section. In addition to a nice clean, well inked, stamp; it is my custom to emboss every time.

Back to the caller. With hospital situations the ID is often a problem. I managed to learn that both the patient and the sibling have driver license photo ID. Never skimp on the oath with any part of a Power of Attorney. So, I inquire as to the patient’s ability to understand the document, my notary oath; and is able to sign unassisted. OK so far, there will be two copies processed of the Power of Attorney; and both the Principal and the sibling Agent will be notarized. As this was to be done in the room of a terminal cancer patient, I was told I would have to “suit up” to protect the patient.

In a prior blog http://blog.123notary.com/?p=16469 – I had harsh words for notaries who refused a blind affiant. Well, I’m sure many would not want this assignment. Going into a terminal cancer situation is emotionally taxing. Again, I stress the “ground rules” for me to be able to notarize. The Agent wishes to PayPal, immediately – probably assuming that would assure my arrival. She mentioned that the hospital was in possession of the patient’s credentials, and that obtaining the driver license would not be a problem.

Surprise. I am shown a photocopy of the Patient’s driver license. I gently go into my explanation of why a photocopy cannot be accepted. I had to. Unfortunately, the Agent broke down in tears. The Power of Attorney, while not being a Health Care Proxy; was desperately needed for some expenses. I am as empathetic as most, but a Photocopy? Not a chance – not because it’s a Power of Attorney, but because that does not (in my sole opinion) meet the NY State standard of being shown “adequate proof”.

“The Patient Representative just delivered it to me”, “they cannot release the patient’s property unless I have a Power of Attorney”. Verifying with the Patient Representative, who had multiple hospital photo ID tags prominently displayed, “I cannot release any items, but did provide the driver license photocopy, made moments ago”. I accept the photocopy as valid ID, now being “adequate proof” – in my opinion.

I suit up. Face mask, hand washing, rubber gloves, cap and complete cover all gown. The patient cannot talk due to apparatus in throat; but is aware and answers some basic “understanding” questions with head motions. Patient, now Principal on the Power of Attorney, is just barely able to sign. I administer the oath and receive an affirmative series of “nods”. We adjourn to a conference room to process the Agent of the Power of Attorney and complete the paperwork. Another “rough” one, complete with a variance from “standards”.

I’m glad I was called first. I would not want “declining notaries” to exacerbate my client’s mental state.


You might also like:

Notary Public 101 – Identification

Identification requirements for being notarized

Logic errors can cost you as a notary



  1. This is a story with real notary world implications. Thank you for this.

    Comment by Jill Bernshouse — December 12, 2016 @ 5:33 am

  2. Well, congratulation you broke the law in every direction possible.
    No matter how sorry we are for people we still have to do our job.
    At that point for those people subject of this post it was to late for a Power of Attorney signing.
    That should have been done way before the final stage and way before bed ridden with a tube down the throat and there is absolutely nothing we can do to help. Only the court and a judge can help the family at this point.
    You could have used witnesses for the missing ID if the state law allows it and maybe it would have been OK but the way you proceeded is not acceptable and highly illegal

    Comment by V Marcu — December 12, 2016 @ 4:27 pm

  3. Thank you for writing this article. One comment: when the patient representative said she had just made the photocopy because she could not release the possessions, I would have asked to see the drivers license and compare the actual license with the photocopy. I believe that would have been appropriate and the proof of ID required.

    Comment by Terri L Poster-Taylor — December 14, 2016 @ 8:46 pm

  4. A heartbreaking situation. I’ve not had a photocopy shown. I wonder if the Social Services in the hospital could not have let you see the original without having to release it so you could log it into your journal. Of course, knowing your state law on what is acceptable will direct you to the right course of action and barring that you could use a credible witness – perhaps a nurse or doctor to obtain identification.

    Comment by Margaret Paddock — December 20, 2016 @ 2:31 pm

  5. NY state requires the notary to see “adequate proof” but never further defines that term. Basically, IMHO, that leaves the definition up to each individual notary. Some might take a Food Town membership (with no photo) others go for Govt issued photo ID. Viewing the ID without the affiant present was not acceptable to me – I would have to remember the ID photo to subsequently compare to the patient. I put my trust in the impartial actions of a hospital professional (who did have institutional ID). Agree, it was a close call as to meeting “adequate proof”. If it ever went to litigation I feel a jury would deem my decision reasonable.

    Comment by Kenneth Edelstein — January 3, 2017 @ 5:11 am

  6. Very well handled in a difficult situation. Having the Patient Advocate/Representative verify the validity of ID was a good additional step – and one that was hopefully recorded in the notary journal. Insofar as the comment by V Marcu, the approach taken would not have been in violation of New Mexico notary law.

    Comment by Brian Milbank — January 3, 2017 @ 7:34 am

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