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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 .

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Power of Attorney: types often created
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February 11, 2012

The Power of Attorney Signing

The Power of Attorney signing
 
Less than 1% of notarial signings are power of attorney signings, but they happen, and you need to know what to do.  The Grantor is the person who grants power of attorney to a Grantee who is the attorney in fact.  Depending on the terms of the power of attorney, the attorney in fact has special powers and rights to perform certain functions in good faith on behalf of the grantor.  In fact, a living Will is a type of health care power of attorney that gives someone the right to make health care decisions for you should you be incapacitated.  A banking power of attorney gives someone the right to do your banking for you. Attorneys in fact are generally family members, and you better trust them with your life, because your life will be in their hands.
 
Getting a power of attorney
To sign as an attorney in fact, you need to have a notarized power of attorney document.  BTW, banks will typically only allow their own custom made forms from their particular bank.  These forms typically don’t have room for your notarial seal, but the banks don’t seem to mind!
 
Signing documents
At a signing, the attorney in fact was there to sign a Deed on behalf of the grantor.  John Smith was signing on behalf of Reginald Smith.  The verbiage you can use for signing is:
 
Reginald Smith, by John Smith, his attorney in Fact    or
John Smith, as attorney in fact for Reginald Smith.
 
I prefer the latter, because it allows you to sign your own name instead of forging Reginald’s name. 
 
Initialing?
Since it was a Deed of Trust, it needed to be initialed at the bottom.  But, how do we do this?  JS, as attorney in fact for RS?  JS for RS?  RS by JS?  There is no standard way of initialing as an attorney in fact.  Perhaps John should initial only as himself without mentioning capacity?  JS… 
 
Conclusion
Power of attorney signings are not hard.  You just need to know the basic procedure and you are fine.  Take thumbprints for all notarizations involving  a power of attorney.
 
Commenting on this blog
If you would like to comment, you are invited.  Even if your opinion is far out, we and the other readers look forward to it.

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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.

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Notarized Affidavits Information
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No Common Language — a solution to an Oath?
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