Posted by td on 2/19/05 5:46pm
Msg #21446
Attorney in fact
I need some assistance - I just completed a signing where the sister has power of attorney for her brother. On the acknowledgement form of the deed of trust, do I fill out the sister's name that personally appeared before me? This is the first time I've ever come across this. Thanks!
| Reply by Bobbi in CT on 2/19/05 5:50pm
Msg #21449
Think. (Not to be mean, but you can figure this out.)
1. Your state Notary handbook should have an example.
2. Sister Jane Doe has Power of Attorney for brother John Doe. In CT, I would put: Personally appeared before me this Februrary 19, 2005, Jane Doe as attorney-in-fact for John Doe. I would also want to see the original Power of Attorney, making a note of pertinent information in my notary Journal.
| Reply by td on 2/19/05 5:56pm
Msg #21450
Thanks for the info!
| Reply by Bob-Chicago on 2/19/05 6:19pm
Msg #21452
Worry about that a bit
I am usually not a worry-wart , but I am concerned that if I put the signers capacity as a POA in my ack, I might be held to be certifiying that Jane is authorized to act as John's atty in fact.
John may have died, John may have terminiated Jane's rt to act as his POA, the POA may be forged or legally defective for some reason, POA may not be valid for this xtion. or GOK what else.
I look at the POA also and note the info, but only to determine how she is to sign. Jane Doe, Jane M. Doe, Jane Mary Doe, etc. I don't get paid nearly enought to decide if it is a valid POA for this xtion.
Jane by her sig, (normallly "John Doe by Jane Doe, his attorney-in-fact) is representing that she has a valid POA for John for this xtion.
The only thing that you know for sure, is that Jane (you verified her id) appeared before you and signed some stuff on behalf of John, and that Jane represented that she was authorized to do so.
I have a problem stating more than that over my signature.
| Reply by Bobbi in CT on 2/19/05 6:41pm
Msg #21454
CT different ...
Depends on your state. Can do in CT, maybe not in other states. Examples of these notarization blocks are in our Conn. General Statutes (aka laws).
If someone came to me and said, "I am John Doe, President of XYZ Corporation, and I am authorized to sign this document" and showed me proper identification but NOTHING to prove he is President of XYZ or authorized to sign, I can still notarize. Quirky notarization language, "John Doe, President of XYZ Corporation...who acknowledged that he executed the same in the capacity therein stated for the purposes therein contained." He proves he is the "person," but doesn't have to "prove" the rest. Same with a Power of Attorney or manager of a limited liability company or limited partnership.
My guess is this came about through lawyers' involvement and limiting a CT notary's function and, as a lucky result, the notary's liability. FYI. In CT, the receiving agency usually has documentation in its files regarding Power of Attorney or authority to sign. In CT if there's a real estate document signed by a PoA that must be recorded on the Land Records, the PoA has to be recorded, too. Makes residential refinance notarization much safer - lender package includes instructions that original PoA must be returned with mortgage, which means I see original PoA, often have an Affidavit that PoA still in effect, and can note I saw PoA in my Journal. Personally and leaning on the conservative side, if there is a PoA signing, I ask the person if s/he has the original and can I see it at the signing. 99.9% of the time the borrower has already faxed a copy of the PoA to the lender's "legal department" for review and approval and the loan officer has already prepared them and told them the PoA has to be returned with the loan document package.
| Reply by Dennis D Broadbooks on 2/19/05 7:36pm
Msg #21459
I'm in Bob's Court Here...
...for all the reasons he's just stated. I can't tell you the number of DOT acknowledgments containing "John J. Doe and Jane A. Doe, Husband & Wife" in the body of the Notary certificate where I've lined out the husband & wife part (initialing the correction, BTW). I've had this discussion many times over with our MO SOS office & they agree it's "not our job" to determine capacity...whether it's husband, president, trustee, or grand poobah. Even if a couple shows you their (I used this word in its proper context, Hugh!) marriage license, that's no guarantee they haven't obtained a subsequent divorce. I'm not there (I used it properly again, Hugh!) from an ID standpoint to do anything other than verify the individual's name on the Notary certificate as it compares to the signature name on the document.
Having said that I HAVE run into situations where there's (correctomundo, Hugh!) additional wording stating the signers of the document have acknowledged to me (the Notary) their (right again, Hugh!) relationship as husband & wife. In those cases I specifically ask the couple before me if they acknowledge they're (got it, Hugh!) indeed husband & wife. I don't have a problem leaving language like that in the Notary certificate because I'm not "certifying" or "testifying to" their (last time, Hugh!) marriage relationship, only that they've verbally acknowledged to me its existence.
| Reply by Bob-Chicago on 2/19/05 11:18pm
Msg #21484
PTL , need to mark this date on my permanent calendar
See, Dennis, even a broken clock is right twice a day
| Reply by Dennis D Broadbooks on 2/21/05 9:13am
Msg #21599
If You're Marking it for Posterity Purposes...
...please make a note our civil agreement on this issue had absolutely nothing to with the NNA!
| Reply by Jon on 2/19/05 7:44pm
Msg #21461
In CA, we are prohibited from determining capacity. We can only list the name of the person appearing before us.
| Reply by PAW_Fl on 2/19/05 7:56pm
Msg #21466
I would just like to make a "Florida" comment about the POA. We are not required and cannot ask to see the POA for a notarization. We must take the signers word for it. However, by advise of legal counsel a few years back, they must state this fact under oath. Therefore, I have a prepared "POA Affidavit" that the signer swears they have a power of attorney, it is for this type of transaction, hasn't expired, nor has the principal expired.
| Reply by Ted_MI on 2/19/05 7:59pm
Msg #21468
Re: A wise course of action n/m
| Reply by Lee/AR on 2/20/05 8:27am
Msg #21495
PAW...a question
What do you then do with the Affidavit? Return it with docs or keep for your records?
| Reply by BrendaTX on 2/20/05 6:01pm
Msg #21550
Texas Notary Rules say this...
Texas Notary Rules say this...
>>A Notary Public is not authorized to change, alter or draft any instrument. <<
So, listen up Texans. You are now aware that you can never draft another instrument. The way our rules read, that could include anything from a personal statement to who knows what. ( !)
That's a pretty bad situation for lawyers who also happen to be notaries.
Actually, one lawyer I used to work for took this quite literally and chose not to hold a notary commission. As soon as a new legal secretary came into his office, he got them a commission. We always had at least one notary on the premises.
The context of the above statement is this:
4. MAY I ALTER OR CHANGE THE INSTRUMENT I NOTARIZE?
To answer this question, a distinction must be made between the instrument and the acknowledgment. A Notary Public is not authorized to change, alter or draft any instrument. However, a Notary Public may correct the certificate of acknowledgment to reflect the proper facts. For example, if an acknowledgment is taken in Webb County and the certificate shows Marion County, the certificate may be corrected as follows...
| Reply by PAW_Fl on 2/20/05 6:54pm
Msg #21555
Re: PAW...a question
I keep it for my own records. It is not drafted for anyone's use buy my own. With loan documents, the lender typically wants the original POA anyway, so they have no need for the affidavit. It is for my own protection in case I'm ever questioned as to why a signer signed with a POA. Since FL doesn't require us to see it, only take the signer's word, I don't want to be in a "he said, she said" situation.
Brenda... Ask you SOS if you can use attorney developed or your own documents for YOUR own use. The way I interpret your statements is that you can't use a document you drew up for somebody else, which I certainly agree with. However, for your own protection and use, I would think it would be okay.
| Reply by BrendaTX on 2/21/05 5:03am
Msg #21590
Re: PAW...a question
Paul: "Brenda... Ask you SOS if you can use attorney developed or your own documents for YOUR own use. The way I interpret your statements is that you can't use a document you drew up for somebody else, which I certainly agree with. However, for your own protection and use, I would think it would be okay."
Paul,
I agree with you. However, it's been my experience no matter what the query if I call the SOS I have been told that it is my job to ID the borrower and not leave any blanks in the document.
Interesting combo of advisories given the fact that in Texas nothing specifically exists in our rules about leaving blanks in the document.
| Reply by sue on 2/20/05 9:56am
Msg #21512
td - this is a state specific question and you should onlly rely on answers from someone in your own state. Your state's notary handbook is the place to start. In my state, PA, we've got a special acknowledgement that we use for POA situations.
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