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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.

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Notarized Power of Attorney
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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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