I was reminded of this situation as I looked through our retweets. Apparantly, our followers like tweets about Powers of Attorney. So, I decided to come up with some real stories about Power of Attorney signings that can inform and inspire notaries everywhere.
It happened many years ago. I remember many of the details. I went to someone’s home to notarize a Power of Attorney for banking. They had a fancy Attorney draw up the document and it looked very professional. Please note: non-Attorney notaries are probably NOT ALLOWED to draft up Power of Attorney documents or other legal documents in most if not all states. I had notarized many types of Power of Attorney documents in the past. Durable Powers of Attorney, Health Care Powers of Attorney, Living Wills, Limited Powers of Attorney, Correction Agreement Power of Attorney, and many others too. Yes, a Living Will is a form of Power of Attorney where it gives someone authority to make medical and other decisions for the principal should they become incapacitated.
In any case, I notarized this Power of Attorney, and the client took it to his bank, and it was rejected. But, why? Nothing was wrong with the document or the notarization. So, what was it? The bank had THEIR OWN form of Power of Attorney. We learned the hard way. After spending hundreds on an Attorney and $50 on me, he now knew what to do. So, I had to meet the client at the bank. I forget which bank it was. One of the big ones. Perhaps Bank of America, Chase, or some other big name. They had a form on card stock that had a carbon copy. There was no room to put my stamp. It was idiotic. They wanted the stamp on the form itself and no Acknowledgment Certificates stapled on. So, I filled out the Acknowledgment wording and notarized the form. Voila — acceptable.
So, the lesson for today is — what the law says is acceptable is very different than what the document custodian (the person receiving and keeping or holding onto the document) might see as acceptable. Sending notarized documents to China, the stamp has to be on the document, but try explaning to them that the California Notary Verbiage needs to be on the document too if they want their stamp. Good luck. Warn your clients of the fact that their bank might not accept the Power of Attorney. The moral of the story is to ask the document custodian what type of power of attorney THEY want.
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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.
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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