Power of Attorney vs a Will
There are many types of Power of Attorney documents. However, the general theme is that someone is granting authority to someone else. A Will contains the maker’s words, directives and decisions. The executor of a Will is not a decider of asset allocation, rather a facilitator of the deceased’s allocation desires. In contrast to a Will, the Agent of the Principal (of a Power of Attorney) “may” have the authority to “call the shots” – or, the Agent may be severely constrained. Usually the Agent has “some” authority to sign for the Principal. In almost all cases, the authority granted by a Power of Attorney ceases upon the Principal’s death. The Principal granting power to the Agent may revoke such power at any time unless incapacitated. A Will can also be revoked, until Probate…..
Lifespan of the Power of Attorney
The Durable Power of Attorney – (General or Limited) remains in effect when the Principal becomes incapacitated. If the Power of Attorney is not Durable, the authority of the Agent does not exist if the Principal is in no condition to revoke the authority.
The Springing Power of Attorney – Similar to the Durable, the Springing only “comes into effect” when the Principal is incapacitated. As the definition of incapacitation can vary, the specific definition of the “trigger” should be specified in detail in the document itself.
Scope of the Power of Attorney
The General Power of Attorney – This allows the Agent to sign the name of the Principal unless it’s illegal for them to do so. One example: you can’t grant power for someone to sign your notary signature. If the word Durable is included, the power remains unless revoked or death of the Principal.
The Limited Power of Attorney – (sometimes called a Special Power of Attorney) grants from Principal to Agent authority to perform specific actions. Often this format contains an expiration date. Commonly used with loan documents, authority is granted for the Agent to sign various paperwork related to obtaining real estate.
Entitlement of Agent to Receive Payment
Unrelated to the “Gift Rider”; when the Agent manages (in some jurisdictions) property, they have a statutory right to be paid. Amounts vary, but a very rough guideline (unless otherwise specified) is:
3% of money received by the attorney,
3% of money paid out by the attorney on your behalf, and
3/5 of 1% of the average annual value of the assets covered under your power of attorney.
In personal transactions, the Agent has no right to be paid unless specified by the Principal. In some cases, the Agent applies to the Court to allow payment for Agent Services. In the vast majority of what we will see as Notary Publics, payment is rarely a concern or specified. When a payment arrangement exists, it will usually be part of a separate contract and not contained in the distributed Power of Attorney.
How the Agent uses their Authority
Assume Lock is giving Key an Agent relationship. Key would probable use one of the following formats:
Lock by Key as Attorney-In-Fact
Key as Attorney-In-Fact for Lock
Opinions vary, I prefer the first example because Lock is written first matching the “under the line”.
Considerations for the Notary
ID – Follow your jurisdiction requirements – To The Letter. Power of Attorney documents can easily be litigated in a court. Look very closely at the ID, if it’s a 35 year ago picture does it look like the affiant?
Capability – a tough one, but I like to ask why they are signing, what does this document do?
Initials – Almost never required, but let’s think about it a bit. Initials are mainly used to acknowledge seeing a page. But, I submit they also “mark” a specific page as having been accepted. While I don’t suggest affiants to initial each page (Principal, Agent(s), Monitor(s) and Successor Agent(s)) – I would insist upon it if I was the Principal and not the Notary.
Blank Lines – The Principal should consider a N/A in each not-applicable area. For example: there is usually an area for the “second agent”. If this was subsequently completed, and a “loose ack” added to the document – it might appear that the second agent was approved by the Principal.
Oath – I know, many do not bother to administer an oath. On Power of Attorney documents ya better!
Suggest More, Earn More – Under most jurisdictions, a photocopy of a notarized document – is Not a notarized document. One copy will suffice for a task specific use, as in a Signing. However, a general care giver might need many copies. It is likely that a financial institution will require an original for them to permit the Agent to use their power(s). Your client might not know this, often they assume a photo copy will work the same as an original that was “wet signed” and embossed. A few dollars for each extra copy is a value to your client and might add up to some Sesame Chicken for you.
Witnesses – rare for Power of Attorney but does occur. I feel the witnesses should also be notarized whenever possible. The California “Long Form” Acknowledgement is perfect for this as it has specific areas to associate the “loose ack” to witnessing the document.
Closing Thoughts
I receive many calls for processing Power of Attorney documents. Often the caller is somewhat angry about their recent notary experience. They relate that the notary at the bank refused to notarize a totally legal to process document, it’s bank policy – they relate. The bank does not want their “deep pockets” as part of litigation. These are much more likely to be contested than an application for a passport.
It’s not often, but sometimes someone wants me to notarize their self written Power of Attorney. Of course I can do that, but I caution them that, in the majority of my experience – the document is not in a state specific standard form. Furthermore, your document might not be accepted as you intend. I am willing to proceed, but you have been cautioned that it might not suffice. They can make an informed decision.
Sometimes for a Power of Attorney signing I receive a copy (photocopy or via email) of the relevant Power of Attorney. They send it so I can “verify” and “accept” the Agent signing for the Principal. It is my opinion that I have no requirement to see that document. First, I am not an Attorney, and “technically” am not qualified to judge, read, or take any action; even if the original “wet signed” was submitted. Nor would I be in a position to know if the authority had been revoked, or if the Principal is deceased. When I notarize “Lock by Key as Attorney-in-Fact” – I am notarizing Key – only. Key is stating explicitly, and under oath (I think – it gets a bit fuzzy here, I’m not an attorney) that Key currently has AIF authority.
At the start of this blog entry I mentioned Lifespan and Scope and covered the more commonly used documents. Note that their characteristics can be combined in multiple ways. I think there could be, of the ones covered Four Factorial permutations: 4 * 3 * 2 *1 = 24 variations! This is one document that I never want to have to read and explain (with liability!) to those I will notarize.
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You might also like:
Index of posts about Power of Attorney
http://blog.123notary.com/?p=20255
Index of information about documents
http://blog.123notary.com/?p=20258
Preparing to sign a last will and testament
http://blog.123notary.com/?p=19967
Black Notaries vs. White Notaries — comedy edition
EDDIE GRIFFIN: Man, what’s the difference between white Notaries and black Notaries? I didn’t even know there was such a thing as a Notary until I was 19 and had to get a car title notarized. That was six months after I found out that isn’t is another way of saying ain’t. I would just assume that a bruthah would sign more smoothly than a white Notary.
CHRIS ROCK: In an ideal world, a white Notary would witness signatures, but a black Notary would have a body camera to make sure of what he witnessed.
EDDIE GRIFFIN: You’re making the Notary sound like the Dallas Police force. If I were a black Notary, I’d be more worried about being pulled over by the police. “Registration and Notary seal please, you know the drill.”
CHRIS ROCK: Yeah, but if Notaries were really like police, at loan signings, they would say, “Now reach for your ID, nice and slow — no sudden movements.” while they had the borrowers at gunpoint. I can’t imagine a signing like that — unless it happened in Detroit.
JERRY SEINFELD: And if you did a signing by X, if you knew who the signer had been seeing while married to his ex, then you’d know why she became an ex.
EDDIE GRIFFIN: I don’t think that signing by x is exactly like that, but I’m digging the way you think.
CHRIS ROCK: And by the way — black Notary lives matter, especially if they’re listed on 123notary.
JERRY SEINFELD: But, if you’re signing with an X, you didn’t come from the greatest school, unless you’re Malcolm X.
EDDIE GRIFFIN: With my luck, the minute I became commissioned as a Notary and got in my vehicle, within minutes of leaving the county clerk after taking my Oath, I’d probably get my ass pulled over by the Notary Police — but, for what I don’t know.
POLICE: Do you know how fast you were signing, son? Can I see your Notary Seal Please?
EDDIE GRIFFIN: I just got my Notary commission, I haven’t even used it yet. How come you didn’t pull that white Notary over?
POLICE: We don’t judge a Notary by the color of his ink, but by the content of his character.
EDDIE GRIFFIN: Yeah, you’re a character all right.
POLICE: And by the way, the paper might always be white, but the ink is always black which in my opinion kind of evens the score.
EDDIE GRIFFIN: Yeah, some things ain’t never gonna change.
POLICE: We just wanted to make sure you weren’t notarizing by text and driving at the same time. Just a routine check.
EDDIE GRIFFIN: Yeah, stoppin’ brothers. What could be more routine than that?
JERRY SEINFELD: So, what’s the deal with white Notaries?
CHRIS ROCK: Isn’t that redundant? That’s even whiter than Conan O’Brien’s non-tan lines.
EDDIE GRIFFIN: Man, what is it with white Notaries, ya know what I’m saying? I bet a white Notary would go to a signing in his nice family SUV, and he would park on the street just to be polite. And then he would knock on the door being exactly on time and say, “Hi, my name is Mike — I’m white, and I’m happy and I’ll be your Notary today.” I don’t want to white-wash this, but that’s how I see it.
CONAN O’BRIEN: Yeah, I bet if it were a black Notary he would say, “Hi, I’m Jermaine, and I’m the Notary with the smooth conversation. Check out this alligator skin briefcase. And you’d never believe the story behind it. I was down the street at my brother’s house and his kids were playing in the back yard. Then an alligator came out of nowhere — we live in Florida by the way. I rushed out at ninja speed to get those kids out the yard and got there just in time before that gator damn near bit my nephew’s arm off. Then, I drove home a block away and came back with my samurai sword. I bought it in Tokyo during a vacation and had it shipped to me as a decorative piece. I never dreamed that antique sword from the Mei-Jin period that was used by the great Zatoichi would ever be used again for practical purposes. So, I ran into the backyard with my samurai sword and said — hayyyyyaaa!!!! And I done chopped the gator’s jowels off. I sold the meat to a local taco place and had my neighbor make a briefcase out of it.
And… I got the smoothest pens you ever signed with. They’re like butter. These cost $200 and no — you may not keep them. But, enjoy the signing experience, my stories, and enjoy the ride. By the way — my ride is a stretch limo that I have parked outside. We can continue the signing there if you prefer — drinks included, but not until after you finish signing. And remember — sign responsibly!”
CHRIS ROCK: Yo Conan, you rock!
CONAN O’BRIEN: Ha ha, I’m a brutha with some street knowledge! And by the way, you not only rock, you are a Rock!
EDDIE GRIFFIN: Conan’s a brutha now? What????
JERRY SEINFELD: Black, white, yellow, brown, orange – believe me, none of us are happy.
EDDIE GRIFFIN: Brother, you just made me happy to hear that.
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You might also like:
Black Notaries vs. White Notaries — The Notary Manual
http://blog.123notary.com/?p=19322
Honey you can kiss my app
http://blog.123notary.com/?p=14902
Demographics in the mobile Notary business
http://blog.123notary.com/?p=15359