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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!

(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.

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  1. At an education forum in Rutland, Vermont, put on by the Vermont Secretary of State, Paul S. Gillies, attorney and former Deputy Secretary of State, said a notary should look at the power of attorney, or other documentary evidence that a person actually hold the representative position claimed. The forum only lasted two hours, so there no time to get into finer points, such as exactly what kind of evidence was good enough, or whether checking the claimed authority was a duty or just a good practice.

    Comment by Gerry — August 6, 2012 @ 1:10 am

  2. I tend to agree, but NY laws are unclear. The notary must view “adaquate proof” of the affiant’s identity; but not mention is made as to a requirement to determine their specific “status”. As a non POA example: The affiant can sign as “Tom Green President of Big Fish Industries” – of course in the notary section I only state that Tom Green appeared before me. HE is stating his title, I am notarizing his name only. Thus, I also see no need to view the POA itself as both examples are attributes claimed on the affiant signature line; and *I* am not “certifying” the claimed attribute, only the affiant’s name.

    Comment by Kenneth A Edelstein — August 6, 2012 @ 4:20 am

  3. Louisiana makes it easy. If the transaction is to be accomplished through using either a Procuration or Mandate (Louisiana law doesn’t have “Power of Attorney” as that’s a common law concept) then a copy of the Procuration or Mandate must be attached to the documentation, unless the Procuration or Mandate has been recorded in the parish records in which case it can be incorporated by reference in the document. (Louisiana notaries are allowed to draft documents for clients unlike their common law counterparts.)

    Comment by Edward — September 4, 2012 @ 9:57 pm

  4. The notary is certifying the attorney-in-fact’s authority to sign, and I do not see how that can be done without sighting and checking the original POA. However, in many cases a notary will not be checking to see that the POA remains valid (it could lapse due to e.g. the death, incapacity or insolvency of the prinicipal, which may be difficult to ascertain) and the notarial certificate should reflect that.

    Comment by Jonathan Kemp — December 2, 2014 @ 10:47 am

  5. Michigan law agrees with 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

    Comment by Angel — February 15, 2017 @ 2:53 am

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