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December 4, 2016

Power of Attorney – Notary Processing Mistakes

Filed under: Ken Edelstein — Tags: , — admin @ 9:20 pm

Playing Lawyer

You’re going there to notarize, that’s what you do. The caller asked you to bring some blank copies of a “standard” Power of Attorney. I think not. There many different formats to the Power of Attorney document. Selecting, as when you provide a document; could probably be interpreted as the Illegal Practice of Law. You don’t know their requirements, but you happen to have some documents titled Power of Attorney – a recipe for disaster. We notarize upon proof and oath; it’s their responsibility to know what they are signing. That applies to Principal, Agent, Monitor and Successor Agent.

Fuzzy Job Specifications

I need my signature notarized on a Power of Attorney form. Do you accept that sole statement? Does the caller have the form(s)? Is the caller the Principal granting the powers? Will there be Agent(s) and Successor Agent(s). You probably inquired about the ID that will be presented by the caller – but do you know anything about the ID status of others to be notarized? Will all parties be present when you arrive, or will there be a lengthy wait for a tardy Agent? The caller mentioned “a” Power of Attorney form, that’s true enough – but are ten more duplicates awaiting you? Did you schedule this as a “quick one” with your next assignment very soon?

Accepting Risk

You want to avoid accepting risk. One tool is having the assignment prepaid. A more important tool is communication with your client. Stress that the signature(s) of the Principal, Agent and Successor Agent must have proper supporting ID, and that the name on the ID must match the name to be notarized on the Power of Attorney. I make it very clear: “If any person to be notarized has an ID issue that precludes notarization; you will get my sincere regrets, but not a refund”. Hospital jobs have access concerns when the Principal is the patient.

Not Sharing your Knowledge

Many are new to using a Power of Attorney. They often assume a photocopy will be accepted and that they need only one original. That is often not the case. Offer duplicates for a modest fee. Blank areas might require a N/A. Use your embosser – it’s required to submit the document to Federal Courts, and might be required if the document leaves the state where notarized. Clients can forget that most Power of Attorney documents require the authority of Agent, and Successor Agent to be specified. This is usually done by the Principal initialing various “right granting” sections giving authority to one or more Agents, and, or, Successor Agents – easy to overlook.

It’s also easy to overlook the “Separately” initial area. When there is more than one Agent or Successor Agent; the common document default is that they must act in unison. Often, the independent ability of these agents is desired; this requires initials in the appropriate area.

Disorderly Processing

In our signings we complete one document then move on to the next one. Processing a stack of identical Power of Attorney documents is best handled differently. I prefer the “same thing over and over” approach. An entry on the first copy is propagated to the remaining copies. Then the next entry is made in a similar manner. This is easier for all involved as they, after the first two or three; are “familiar” with “what goes where”. After ID checking, and notary oath administration(s) – the notarizations can proceed in a similar manner. Mentally tie to giving the oath asking the affiants if they returned their ID to a safe place. This avoids being called to return their ID when they misplaced it – this happened to me a few times.

The Introduction to the Power of Attorney, New York Statutory Short Form

CAUTION TO THE PRINCIPAL: Your Power of Attorney is an important document. As the “principal,” you give the person whom you choose (your “agent”) authority to spend your money and sell or dispose of your property during your lifetime without telling you. You do not lose your authority to act even though you have given your agent similar authority.

When your agent exercises this authority, he or she must act according to any instructions you have provided or, where there are no specific instructions, in your best interest. “Important Information for the Agent” at the end of this document describes your agent’s responsibilities.

Your agent can act on your behalf only after signing the Power of Attorney before a notary public.

You can request information from your agent at any time. If you are revoking a prior Power of Attorney, you should provide written notice of the revocation to your prior agent(s) and to any third parties who may have acted upon it, including the financial institutions where your accounts are located.

You can revoke or terminate your Power of Attorney at any time for any reason as long as you are of sound mind. If you are no longer of sound mind, a court can remove an agent for acting improperly.

Your agent cannot make health care decisions for you. You may execute a “Health Care Proxy” to do this.

If there is anything about this document that you do not understand, you should ask a lawyer of your own choosing to explain it to you

Have you asked the Principal, Agent, Monitor, and Successor Agent – if they have read and understood the disclosures, usually on the first page of the Power of Attorney document?

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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. Facemask, 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.

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November 20, 2016

Power Of Attorney Documents – Submitted as a double credit document

Filed under: Ken Edelstein — Tags: — admin @ 9:22 pm

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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August 16, 2016

Hospital Notary Jobs

Hospital Notary Jobs

Hospital visits present the greatest personal risk, even greater than jail visits. When you visit a prison the staff knows your personal safety is their responsibility. At a hospital you are virtually ignored. The passing of infections is an obvious key issue; both ways. If you have the slightest contagious aliment it’s best to avoid hospitals. Two main reasons: your personal defenses are reduced, and you can infect a patient, potentially with dire consequences. Most of the NY hospitals that I go to have both facemasks and hand sanitizer at the entrance. Use both, also press the elevator button with a pen; generally avoid touching things. If you ask someone they will usually give you a pair of thin rubber gloves – additional protection.

Hospital visits should always be prepaid. You should stress the potential problems and frankly inform your caller that the risks are theirs. Your fee is earned when you to go to the facility and notarize if you are permitted to do so. There may be objections by the facility, ID issues, access limitations, ability to sign, ability to understand, etc. There is a good chance your client will be named as Agent on a Power of Attorney. Persons obtaining POA authority are quite willing to pay mobile notary fees; and have a great interest in obtaining the notarized document. Though their interest is irrelevant to your go/nogo decision; it’s worth mentioning. The majority of hospital POA jobs are, in my experience; for loving, concerned relatives who want to help. Of course some wish to exploit the afflicted – it’s virtually impossible to derive their true motivation.

But, your job is to notarize, if you feel doing so would be morally and legally proper. Hmmmm, just where did morally enter into the law? There are (at least in NY State) some “judgment call” aspects. Do I feel that the affiant understands the document and consents to it? Did the ID meet the standard of “adequate proof” – perhaps the photo on the license was a long time ago. Let’s continue with your approval of the situation.

You don’t know and will not be told what their affliction is. Sometimes there will be a “facemasks required” sign on the door. You should be wearing your facemask during every visit. Also take care about having the patient use your pen. Consider leaving it in the room, or at least giving it a good wipe with the hand sanitizer, there are usually several on each floor. Usually someone else is in the room. Show them where the patient needs to sign and stay a few feet away. But, you still need to witness signing a Jurat and need to administer an oath. They can bring the document to the patient while you observe. Just be sure that “they” do not sign for the patient!

Back to your fee. Some make payment on the web site with a credit card. Others prefer to pay with cash. Cash should be collected in the lobby if possible, or call your client out of the room and settle the finances first. Recall that you carefully covered all of the possible impediments to being able to notarize. Your “payment first” policy should have been carefully covered by phone prior to any travel, when accepting the assignment. Similar to prisons, things tend to move slowly in a hospital. You may have to wait while bedding is changed, test administered, etc. My basic notary fee at a hospital is half again what the fee would be for an office or home visit. Stress openly and honestly that all “risk” is on their side – you will do the job if conditions warrant, and total legality.

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June 8, 2016

The right to refuse notarization

I just talked to a client who said that she needed to be notarized. The guy at the mail boxes place required a thumbprint for a California notarization that was not for a Deed or POA. The law doesn’t require a thumbprint unless it is for a Deed or Power of Attorney. So, the client of mine (also a Notary, but not “the” Notary in question here) refused, and was denied Notarization.

I checked the 2016 California State Notary Handbook to verify whether or not the Notary has the right to decline if they are not comfortable with the situation regarding a notarization. For example, if the signer seems suspicious, may the Notary refuse to notarize? If the signer refuses to be thumbprinted, and the Notary refuse?

The handbook doesn’t say if the notary may refuse under special circumstances, but states that it is illegal for a Notary to deny services. Hmmm.

If the document contains blanks, or if the Notary cannot communicate with the signer, those are grounds for refusal to notarize. If the signer cannot be positively identified, that is also grounds. If there is a financial or beneficial interest for the Notary to notarize a document, yet another legitimate reason not to notarize.

But, back in the days when I was a Notary, I remember reading that a Notary could refuse to notarize if they had a funny feeling about the notarization. Is that just an antiquated guideline, or was it something published by a source that was not reputable or official? Hmmm.

What does your state say about the Notary’s right to refuse notarization?

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April 20, 2016

Artificially inflated rates at a signing

My rate shouldn’t be this high!
I had a loan signing once for a lady where I looked at the documents and the interest rates printed seemed unusually high. Before I had her sign the papers, I asked her what the loan officer had told her, and she couldn’t remember what the interest rate was that she had been told. She rummaged around in her purse and found a slip of paper where she had written it down and it was definitely different from what was printed on the documents. I tried calling the lender and couldn’t reach them. I left a message but we never heard back from them so we cancelled the appointment and decided to reschedule. I took the docs with me as I left. Magically the next day, new documents showed up with the correct interest rates despite the fact that no phone call ever came through from the loan officer. We made an appointment and signed the next day. I was so glad for her that we had caught that mistake and got it corrected!

Falsely accused of murder
I had a jail signing where a woman was in jail and her fiancee was fighting on her behalf to get her out. Someone had gotten murdered and she was incarcerated, but she was actually innocent and happened to be in the wrong place at the wrong time. The fiancee needed a power of attorney, and he was so well dressed that the guards thought he was a lawyer and he came in with me to see her to get the signing done. When they saw each other, they spoke and he just held and pressed her hand. She was so depressed and upset and sad. The jail had over medicated and sedated her for her depression which made the whole situation ever more upsetting. I felt really bad for them.

The vindaloo signing
I had a funny signing with a Caucasian woman and an East Indian man in my town. When I got there, the husband was quite grumpy because the title company had messed up the settlement statement. When I told him that my former husband was an East Indian man though, he suddenly lit up and got very excited! We went into the kitchen and he gave me a bunch of seasoning packets and told me where to buy the best lamb rack, and we talked about cooking. We ended up rescheduling the signing with the corrected documents and we ended up talking more about cooking then too and he sent me home with more food! It was a fun meeting!

An impersonator at a signing
I had a refinance once where I’m glad I listened to my intuition! There was a situation where the wife was bilingual, and the husband spoke only Spanish. She was the primary on the loan, and when I looked at the ids, hers looked definitely like her. Her husband’s id didn’t really look like the man sitting in front of me. He had a bandanna on that partially hid his head, and the picture looked similar, but I couldn’t really say that the id was really the same man in front of me. I was skeptical but I took the photograph at face value as the wife assured me that this was really him. I started to proceed with the signing. At some point though, the man in front of me suddenly said, “ There’s a problem. This doesn’t match.” referring to the documents. At that point I realized that this wasn’t her husband since he clearly understood and spoke English. It was a friend. Not her husband. So I immediately stopped the signing, told them we were done, and walked out the door. I was so thankful that I was able to stop it, and that I had it recorded in my journal. I called the agency immediately and let them know what had happened.

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December 22, 2015

A Newbie at a Title Company

Filed under: Ken Edelstein,Popular on Facebook (A little) — Tags: , — admin @ 12:00 pm

A Newbie at Title Co.
Most of our jobs are quite routine. Once in a while, thankfully not often; something crosses our path that is extraordinary. It could be very nice, or a mess; as you might have expected – I write about a mess. The docs are the docs, we are expected to make them work. However, there are limits to what, as notaries, we can process. Title has an agenda. It’s their objective to get the papers processed as quickly as possible. It has to be a mess of galactic proportions for them to either dump it, or redraw the docs. Notaries also have an agenda, and one item usually at the top of the list is to do the assignment legally. It’s not our job to enforce the law; merely to abide by it.

After accepting the “piggyback”, for a fair, but modest fee; I learn it’s to be via POA. OK, kinda, they take longer but that is our lot in life. I am told that some “special signing instructions” will be sent to me. I assume it’s their preferred POA phraseology. Some want “Mickey Mouse by Minnie Mouse, his attorney in fact”. Others reverse it: “Minnie Mouse as attorney in fact for Mickey Mouse”. I prefer the latter because the name to be sworn comes first. Both are not at all a factor in the notary section where *only* Minnie would be named. But, this assignment tried to, IMHO, not bend, but break the rules.

The instructions directed me to name the affiant and POA issuer, as sworn. Thus, before me appeared: “Minnie Mouse & Mickey Mouse via POA”. To me that was a new twist. It would appear that Minnie would be, based on the POA; taking my oath issued to Mickey! Just as we cannot delegate our notary status to someone else; oath taking cannot be via proxy. Sayeth title: “there are two signature lines on the notarized document, thus there needs to be two persons named in the notary section”. Admirable logic, a bit of arithmetic; 2=2; that’s hard to argue.

But, that would be an improper notarization. Only the person(s) who actually “appeared before me…” can be named. This set of docs had it both ways. Some had both names filled in the notary section; some had “via Power of Attorney”; and a few were for me to write in. When I called title, informing of the need for me to redact all entries other than “Minnie Mouse”; I received more bad news.

“Her legal first name is not “Minnie”, it’s “Min”. However she took title as Minnie, and an AKA form is not allowed – you just have to notarize her as Minnie””. Strike Two – this job was going downhill faster than the Cyclone at Coney Island. I call Ms. Mouse, to my surprise and delight her driver license had “Minnie”. She told me she used that name all her life; though Min was on her birth certificate. Words, Words; to me it’s what is on the driver license that counts.

During my chat with Ms. Mouse she also mentions that the papers need to be processed quickly. It seems that Mr. Mouse is deceased! Whoa, hold on partner – in every state when the agent knows of the principal’s demise – their authority ceases to exist. Title and Ms. Mouse want to proceed with a voided Power of Attorney! What is my position? My notarizations would make no mention to a Power of Attorney. In my Jurat “before me appeared Minnie Mouse” would be the only entry, and she does have valid ID in that name. I never did find out if title knew of the demise of Mr. Mouse.

I bail out. There had been too many heated exchanges with Title; my insistence on proper format soured them. She told me her legal name was Min, so some doubt. Worst of all would be to facilitate the use of a no longer valid Power of Attorney. Best to not be a party to the eventual litigation!

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September 8, 2015

Good ID is not Enough

It’s a sad notary who is writing this installment. I write this in the evening after the culmination of a series of events. My tale will be familiar to many, especially those with years of experience. It started out as a routine request to notarize a Power of Attorney, then the Agent would sign two additional forms using their Powerof Attorney authority. The assignment was from a lost funds recovery agency. The three short documents were emailed to me; and my fee was coming as a check; mailed the same day.

Delays developed into two weeks, presumably, I did not verify; the check cleared long prior to the start of the assignment. As to the assignment: An elderly lady was in a convalescent home, she was to give her son Power of Attorney to dispose of some assets. Immediately my antenna went up. Hospital environments are challenging, seeing proper ID often a major problem. He also assured me that she was rational and able to understand the document she was to sign. The son related that she did not have “Govt issued Photo ID” but a collection of documents that should suffice. We discussed this issue at length. I have wide latitude in what constitutes proper ID in NY State. The rule here is that the notary is required to view “adequate proof”. That’s it. No further guidelines.

The son could produce several original (not photocopies) documents that only a family member would have access to. The sticking point was the aspect of photo ID. Finally, a breakthrough; the facility had in the patient folder an admission picture, and were willing to give me a copy (to be returned with other photocopies of original documents. It was not the best ID situation, but the lady had been in the home for over a decade, and the assets were recently discovered.

I know, I’m letting the son’s “story” influence my “is it good enough” decision. There were other positive aspects of her identification that I will not disclose. Suffice to say, I informed the son that strict adherence to gathering her ID was essential. Looking at the notary section of her Power of Attorney, I noticed that “produced a driver license as identification” was preprinted. I could not edit the file as the PDF was from a scan. I had the attorney send me an editable file and changed that line to mention by name each of the ID components that I planned to accept. A quick scan and I proceeded to send the scan to the attorney for approval. Approval granted.

The next hurdle was witnesses. I could be one of them. The son said he would “draft” a nurse to be the second witness. Been there, suffered that. Many is the facility that I have visited that do not allow staff to sign anything. The son insisted they would. I asked for the name and contact number of the specific staff member to be sure to arrive during their shift. Son was unable to obtain any commitment and a few days delay was incurred as he found a witness.

Finally, after two weeks, we set a date and time. I prepared two of each of the three documents in case there was a mistake. Upon entering her room my heart sank. It was obvious that she would be unable to understand what she was to sign. Additionally, she was physically unable to sign. The floor nurse was called, and confirmed my opinion. She could hear, but not respond to “blink three times if your son is standing in front of you”. The floor nurse called the Social Worker who asked “what’s going on in here”. A brief explanation later yielded “I will not permit her to sign anything”. Of course that was redundant; I would not notarize with or without her permission. The son lamented that the “Court Appointed Guardian” procedure was too time-consuming and expensive. This was my cue to leave, feeling sad for her affliction. But, the law is inflexible, applies to all; and as NY notaries are sworn officers of the State Department – I could only walk away.

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June 9, 2015

POA – Proceed on Alert

Filed under: Ken Edelstein,Power of Attorney — Tags: — admin @ 10:22 pm

POA – Proceed On Alert
The Power of Attorney is perhaps the “most powerful” of all notarized documents. Some might argue the most powerful is the Will. I disagree. Wills are probated by a Court, an extended legal procedure with notifications, attorneys, and a Judge involved. On the other hand, someone with “just” a POA can gain access to a safe deposit box, sell a house; and do virtually any other function “for” the Principal who granted Agent power to them. POAs can be limited in authority when the Principal initials selected powers, or they can be, as is more common, unlimited.

There are many addicting drugs, perhaps one of the most addictive is Cocaine, a dangerous drug indeed. I think of the POA as the Cocaine of legal documents. With a properly notarized POA that is unrestricted the Agent can access funds, close accounts, sell property, enter into contracts and sign virtually any document on behalf of the Principal. It is the potential for misuse, and the subsequent litigation that has caused many bank notaries to decline processing all POAs. The bank fears its “deep pockets” will become involved in protracted court cases.

There is a slim ray of sunshine in the Power of Attorney gloom. Persons wanting notarization of POAs often have a legitimate personal gain to follow. They are eager to pay mobile notaries, having been rejected at the bank, pharmacy, etc. So the good news is they are willing to pay, but the bad news is that POAs have a somewhat greater risk to the Notary. It’s a good idea to “double down” on the ID requirements, requiring two “rock solid” IDs prior to notarization. POAs being processed at a hospital, by a patient are especially dangerous. The hospital cannot tell you what drugs the patient is taking. How are you to know if they understand what they are signing? End of Life patients often receive Morphine and other powerful medications.

There is also the general misunderstanding about how POAs are used to consider. Generally, they are surrendered upon use. The bank granting access to a safe deposit box will probably retain the Power of Attorney to protect them against potential litigation. It’s a good idea to inquire if the POA is needed for a “one shot”, such as having an attorney sign at a closing. At the other extreme, someone who will be handling the affairs for an elderly relative might need a dozen or more POAs; for banks, brokerage accounts, even to arrange “call forwarding” of cell numbers. Take the time to determine your client’s real need, and how many they will require.

Plan on spending more time at a POA signing compared to other documents. Often the Principal will “rethink” the transaction. It’s a major “letting go” of individuality; as the documents does permit someone else to sign your name. I have attended POA signings at law firms where the Principal reviewed and expressed the desire to make major changes in the POA; even though the issues and powers have been discussed with the attorney at length prior to my arrival.

Though the POA grants the right to sign the name of someone else, it is not without some limits. If I were to give my Agent an unrestricted POA, they could not use my signature to notarize a document; as that authority cannot be granted to another person. Some notaries have taken the position that the risks are too great and refuse to process POAs. In New York State, where the code requires the notary to “notarize upon demand” if the notarization is legal; it’s a crime to decline. The environment is growing more complex. There are no easy answers.

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August 28, 2014

I Love Lucy – The Power of Attorney

Filed under: Andy Cowan,Sit-Coms — Tags: — admin @ 7:06 am

I LOVE LUCY – THE POWER OF ATTORNEY

LUCY: Ricky?

RICKY: (reading paper) Yeah, hon.

LUCY: I just got my hair done. You like?

RICKY: (buried in paper) It’s nice.

LUCY: You like the color? It’s my natural color, you know.

RICKY: (buried in paper) Uh-huh.

LUCY: Blue!

RICKY: (buried in paper) Sounds lovely.

Lucy rips paper away from Ricky.

LUCY: Ricky Ricardo, you haven’t been listening to a thing I said!

RICKY: I’m sorry, honey. I’m just trying to forget about the show I’m doing at the Copa.

LUCY: Show?

RICKY: I have so much to do beforehand, I don’t know how I’m gonna get it all done. The rehearsals. The publicity. The contracts. The manager wants one thing splained. The agent wants another thing splained. Ey-yi-yi-yi-yi.

LUCY: I’m good at splaining! Ricky, I know! Fred can be your power of attorney.

RICKY: Fred can be my what?

LUCY: He can act as your agent. You know Fred used to be a notary public.

RICKY: Fred? Really?

LUCY: As a landlord, he figured it might come in handy with other duties on the job. But he didn’t renew his commission. Not that he wouldn’t if you needed him to be your power of attorney.

RICKY: How come he didn’t renew?

LUCY: Ethel told me it was a secret.

RICKY: A secret? Lucy… you were never good at keeping secrets…

LUCY: Ricky, I promised Ethel I wouldn’t say anything…

RICKY: Lucy!

LUCY: (spilling beans) Two tenants wanted him to authorize an affidavit of domestic partnership.

RICKY: Without getting married first? Ey-yi-yi-yi-yi. Well, I don’t blame Fred for not renewing his commission.

LUCY: Bob and Arnold.

RICKY: Two… guys??

LUCY: Yep.

RICKY: We won’t be able to accept gay marriage until they land a man on the moon! Or Liberace gets married.

LUCY: Fred authorized the partnership. Whoops.

RICKY: So that’s the secret you weren’t good at keeping!

FRED AND ETHEL ENTER.

FRED: Who feels like playing gin rummy?

RICKY: Not me, Fred. I got a lot on my plate.

ETHEL: Fred never has a lot on his plate.

FRED: If you learned how to cook, maybe I would.

LUCY: Ethel, Ricky needs to find a power of attorney. Know anybody?

ETHEL: Uhhh… You mean drafted or notarized?

RICKY: Speaking of “drafted,” Fred, how will the notary know if the document was professionally drafted or drafted by a licensed attorney?

FRED: In fifty years, notaries will have a don’t ask, don’t tell policy, as long as you signed it.

ETHEL: Lucy, you didn’t happen to open that big round thing on your face with lipstick again, did you?

LUCY: I’ll have you know these are the natural color of my lips.

ETHEL: You didn’t answer the question.

LUCY: See, I am good at keeping secrets!

LATER, AFTER THEY’VE HIRED AN ATTORNEY TO DRAFT THE DOCUMENT…

ATTORNEY: Very well, Mrs. Ricardo. Now you are attorney in fact. You can take this to any notary, get it notarized, and Mr. Ricardo’s contracts will be perfectly valid for both his manager and his agent.

RICKY: Now, Lucy, just because you’re an attorney in fact doesn’t mean I want you coming up with some hairbrained scheme to get into the show.

LUCY: Now why would you think that?

RICKY: Why wouldn’t I think that?

LUCY: As your attorney in fact, it wouldn’t be breaking the law if I…

RICKY: Lucy!

LUCY: Okay, okay. Jeesh. What a grouch.

LATER, AFTER THEY’VE HIRED A NOTARY…

NOTARY: Have you your document and I.D. ready?

LUCY: Here’s my driver’s license.

NOTARY: Hmmm.

RICKY: Anything wrong?

NOTARY: This can’t be your license. Under “hair color,” it says “red.”

LUCY: Well what’s wrong with that? It is red.

NOTARY: Do you swear under oath that’s you were born with that hair color?

LUCY: Ehhhhhhhhh.

AFTER RICKY LEAVES TOWN ON BUSINESS, LUCY ORDERS RICKY’S NEW BONGOS FROM A BEATNIK WHO THOUGHT SHE MEANT “BONGS”. THEN SHE ORDERED CUBAN CIGARS THAT TOOK SO LONG TO SHIP, BY THE TIME THEY ARRIVED, THEY WERE ILLEGAL. FINALLY SHE HIRED THE NEXT BEST THING TO HERSELF FOR THE SHOW… A LUCY LOOKALIKE. RICKY SPOTS THE LOOKALIKE… AND FIRES HER BEFORE HE CAN HEAR HOW GOOD SHE IS. THEN THE REAL LUCY TAPS HIM ON THE SHOULDER.

LUCY: Need a replacement?

RICKY: Huh?! But… I thought that was you.

LUCY: You thought wrong. Lucky for me I can fit into her dress.

RICKY: Where are my bongos? What’s that pungent odor I smell coming from that beatnik over there?

TO BE CONTINUED

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