Posted by Kari Schaffner on 12/11/05 6:43pm
Notarizing Living Will in CA
I am going to be notarizing a living will in California - what is the most common to use... an acknowledgemnt or jurat?
Reply by PAW_Fl on 12/11/05 7:04pm
It is not up to you to choose which certificate to use. You MUST BE TOLD, by the signer, author or recipient of the instrument. For you to decide may be considered UPL (Unauthorized Practice of Law) and is not a good thing.
Also, check your manual about notarizing signatures on a will. CA has some "recommendations" for their notaries.
Reply by Brad_Ca on 12/11/05 7:11pm
On page Page 15 of 46.
Reply by TitleGalCA on 12/11/05 7:47pm
Re: Notarizing Living Will in CA - Kari
The document will have the certificate included in it. Your job is to make sure the language is acceptable in California. If for some strange reason it doesn't, you can't decide what it should be.
Reply by B__CA on 12/11/05 9:00pm
Re: Notarizing Living Will in CA - Kari
If you can tell it is an ACK or JURAT, but doesn't meet state requirements, you can attach a loose certificate that does meet state requirements. If you can't determine what type of certificate it is or it doesn't have one, it is up to the person requesting the notarization to tell you or they need to check with the receiver of the document, or an attorney and get back to you.
Reply by Joan Bergstrom on 12/12/05 1:08am
I am always amazed when titleGalCa posts and is clueless
Our California State Handbook 2005 states on page 13:
The California State Bar advises that when a notary public is asked to notarize a document which purports to be a will, the notary public should decline and advise the person requesting the notarization to consult a member of the California State Bar. If an attorney recommends that the document be notarized, a notary public may do so.
Reply by CaliNotary on 12/12/05 1:44am
Joan, you seem to be the clueless one
Your citation is true but that is not the question that was asked now was it? The question was about which type of notarization to use and TitleGal's answer was anything but clueless, it was 100% correct.
Whether the original poster should be notarizing the living will is a completely different question. For all you know she may already have gotten the recommendation from the attorney, I don't know why you would automatically assume she didn't.
If you want to flaunt your superior knowledge on here, it would really be helpful if you showed signs of reading comprehension. Otherwise it kind of dilutes your point.
Reply by BrendaTx on 12/12/05 2:05am
Joan - I think you may be wrong. Re-read the thread.
The thread is about a living will, not a Last Will and Testament.
In CA I think you call them Advance Health Care Directives.
Here's where I found your law on this...
SECTION 1. Section 8205 of the Government Code is amended to read:
(a) It is the duty of a notary public, when requested:
[snip (#1) ]
(2) To take the acknowledgment or proof of advance health care
directives, powers of attorney, mortgages, deeds, grants, transfers,
and other instruments of writing executed by any person, and to give
a certificate of that proof or acknowledgment, endorsed on or
attached to the instrument. The certificate shall be signed by the
notary public in the notary public's own handwriting. A notary
public may not accept any acknowledgment or proof of any instrument
that is incomplete.
And, the California Medical Association states on their website:
Do I need a lawyer to complete an Advance Health Care Directive?
No. You do not need a lawyer to assist you in completing an Advance Health Care Directive form (such as the form supplied in the CMA kit). The only exception applies to individuals who have been involuntarily committed to a mental health facility who wish to appoint their conservator as their agent.
DISCLAIMER: I'm from Texas - I think Joan is incorrect, but wait for a California ruling to decide.
Reply by PattiCA on 12/12/05 11:35am
Re: Joan - I think you may be wrong. Re-read the thread.
Brenda is right
Reply by PattiCA on 12/12/05 11:41am
TitleGal is correct in stating that the required notarial form will be attached to the document. As a CA notary you may never choose which (acknowledgment or jurat) to use. Joan is correct that as a CA notary you can not notarize a will (Last will and testament) but you can notarize a living will which is now called an advanced health care directive. Hope this helps
Reply by PAW_Fl on 12/12/05 1:30pm
Just a heads up - Not all living wills are advanced health care directives. Also, not all living wills or health care directives will have the notarial certificate preprinted or attached, though most of them will.
CA notaries, are "advised" not to notarize a will, unless directed to by an attorney. It doesn't state that a notary cannot notarize a will.
Reply by TitleGalCA on 12/12/05 2:05pm
What I like about this thread....
...everybody learns something.
PAW corrects poor Joan that ***Ca notaries are "advised" not to notarize a will, unless directed to by an attorney. It DOESN'T state that a notary cannot notarize a will*** (emphasis mine). That is a true statement.
It's sad that someone in Florida has to correct a teacher of California notary rules.
Hit the books Joanie - this statement was placed in the Notary handbook many years ago as a result of the California Bar Association putting their considerable political clout on the government to "protect" their interests. I knew this in 1985 when I obtained my first notary commission.
Also, Joan, do a search for a post of Harry's, 61596 - I suggest reading the entire thread. You'll learn something.
Reply by srnotary_CA on 12/12/05 2:19pm
Re: What I like about this thread....
I was told in the ever present course I took that notarizing a will in CA invalidates it. SO was that out of date? I took the course in May of this year. I personally will stay away from them because of this.
Reply by PattiCA on 12/12/05 5:41pm
I would be interested in what a living will is if not an advanced health directive.
Definition of Living Will:
A living will, also called will to live, advance health directive, or advance health care directive, is a specific type of power of attorney or health care proxy or advance directive. It is a legal instrument that usually is witnessed or notarized.
I believe that the will as referred to in the CA notary handbook is real what is considered the "Last Will & testament"
Definition of Will:
In the law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. For the devolution of property not disposed of by will, see inheritance and intestacy. In the strictest sense, "will" is a general term, while "testament" applies only to dispositions of personal property (this distinction is seldom observed). A will is also used as the instrument in a trust.
It is also my understanding that in CA, a "last will and testament" is invalidated by notarization or typed if not prepared by an attorney. To be valid without the use of an attorney, it must be handwritten and signed. (Holographic will).
I am not an attorney, nor is this intended to be legal advise. This is only my interpretation of information available on the internet and via other electronic sources
Reply by PAW_Fl on 12/13/05 12:10am
As was explained to me during an Estate Planning seminar, a living will is merely a statement by an individual as to their desires ***without designating an advocate, car-giver or power of attorney***. Advanced Health care directives do the same, but appoint someone to make life sustaining decisions for the person making the directive. Some states mandate the form for a valid Health care Directive. Many states have repealed the "living will" laws and replaced them with "Advanced Health Care Directive" legislation, but courts have held that a living will is still a viable document for expressing ones wishes.
Reply by BrendaTx on 12/12/05 7:43pm
***Just a heads up - Not all living wills are advanced health care directives. Also, not all living wills or health care directives will have the notarial certificate preprinted or attached, though most of them will.***
Agreed, but apparently for California such is the case. My point remains that TitleGal was not clueless. The post she responded to was about a living will and not a plain *will* as was stated--she's not a clueless notary as was stated about her. That's the only reason I came in on this one...it seemed kind of harsh to say she was clueless so I looked it up.
If you can believe CA doctors and nurses, TitleGal was in no way clueless.
From the California Medical Association's Website - here is a good bit of info regarding the subject they have stated as:
"Your living will, the New Advance Health Care Directive"
Reply by TitleGalCA on 12/12/05 9:19pm
Re: Notarizing Living Will in CA- TY Brenda etal please read
This is funny, truly. The original poster had one question: "What is involved, a jurat or an acknowledgment?" If I recall correctly (and re-read).....I answered the question.
Little did I know Ms. Joanie had a personal beef with me. What the problem is I can't imagine. I do know her posts are very unpopular with CA notaries as she's turning out new notaries by the hundreds with promises of $100,000 income. She's been pretty badly taken to task for that erroreous statement on the board, and I'm sure that must put a damper on her notaryclasses.com course, after the new notary understands and realizes they were fed just plain BS and their hard-earned money was the result of a marketing scheme.
Brad_CA, don't bother responding. The tone of your posts suggests a servent, at best. If I were you, I'd be demanding a percentage of the new signups for notaryclasses.com. You should be compensated for your blind faith in this program. You love Joanie to death. That's not a bad thing...but my gosh, man, at least get commission - make some money off your endorsement of this program,
Second, it took a FLORIDA notary to show Joan the way. That is just plain embarrassing.
Third - there's lots of good info here for Health Care Directives and Living Wills. All good stuff, and great posts.
My original post was to help the author. Now, I'm happy to report Ms. Joanie shouldn't ever read something into a post that was not intended. (Especially if one is ahem...."teaching".) I suppose it helps when you know the 'inside track' and the why's and wherefore's (eg. the current political trend) of the legislature in making that statement in the Notary Handbook.
California notaries are not a subject of state legislation...we are the red-haired step-children of the State, UNLESS there is a problem. If you find we are suddenly elevated to legislation voting...then take advantage - contact your local representative and give him the "what-for" about your opinion.
Yet, this thread is chock full of information, if you've got the sense to see it. Brenda - I DO have an advance health care directive for my Mom, who as you know, is not doing so well. The likes of Joan's posts doesn't make it enforceable - but trust me, I will.
Reply by PAW_Fl on 12/13/05 12:14am
I certainly agree with ...
"My point remains that TitleGal was not clueless. The post she responded to was about a living will and not a plain *will* as was stated--she's not a clueless notary as was stated about her." As posted by Brenda/TX.
Reply by Glenn Strickler on 12/12/05 2:36pm
Interesting thread. I really don't have anything to add to all the legal speak, but I thought everyone would be interested to know that I have a friend who right now is being sued and is part of a legal action because he notarized a signature on a living will (at the request of an attorney). Seems the heirs are contesting the whole thing. I'll post the outcome, but these things could take years.
So my advice: Have plenty of insurance.
Reply by TitleGalCA on 12/12/05 8:34pm
Re: Notarizing Living Will in CA - Glenn
In an all-inclusive law suit - yes, everyone will be named including the notary, the title company, and the mailman. That doesn't make the notary responsible, or guilty of having done something wrong. More times than not, everybody's dragged into the suit, regardless of right or wrong - it's just the lawyer covering all aspects (and sources of funds) in the suit.
I agree that having plenty of insurance is always smart. It's a given.