Posted by PAW on 6/6/08 6:42am
Msg #250202

Can an attorney-in-fact take an oath for the prnicipal?

This question has been asked and debated numerous times. So I asked the Florida Bar for their opinion. They referred me to their Consumer Phamphet (http://tinyurl.com/l2vlp) which states:

"What may an attorney-in-fact not do on behalf of a principal?"

"There are a few actions that an attorney-in-fact is pro­hibited from doing even if the Power of Attorney states that the action is authorized. An attorney-in-fact, unless also a licensed member of The Florida Bar, may not practice law in Florida. [>>>] An attorney-in-fact may not sign a document stating that the principal has knowledge of certain facts. [<<<] For example, if the principal was a witness to a car accident, the attorney-in-fact may not sign an affidavit stating what the principal saw or heard. An attorney-in-fact may not vote in a public election on behalf of the principal. An attorney-in-fact may not create or revoke a Will or Codicil for the principal."

Reply by Calnotary on 6/6/08 8:36am
Msg #250209

In these past years I have been reading about it here. Who ever prepared the loan docs, why they don't use only Acks instead of jurats. On a recent signing with POA the escrow officer told me to attach an ack. instead of a jurat.

Reply by PAW on 6/6/08 9:27am
Msg #250212

Can't use an ACK in place of jurat.

With affidavits and other documents, in which the signer is placed under oath, the proper certificate is a jurat. In Florida, a notary cannot use an acknowledgment if the signer is given an oath.

Florida Statutes 117.03 - Administration of oaths - The notary public may not take an acknowledgment of execution in lieu of an oath if an oath is required.

Reply by Lee/AR on 6/6/08 9:44am
Msg #250215

What to do... what to do~~ n/m

Reply by sue_pa on 6/6/08 12:03pm
Msg #250246

Clear as mud !!! the one that applies is ... knowledge of certain facts ...


Many times an aif knows 'certain facts' and could swear to them. I absolutely, positively, 100% could swear to the names my sisters have used in their lifetimes. I absolutely, positively, 100% could swear to a survey affidavit for my youngest sister - 100% NEVER for my oldest (they're 'spatting' with their neighbors over a line through their common wooded area).

I am not positive, but I am all but positive, that PA has no prohibition on this. I've always said that an aif not taking an oath is a 'signing agent' myth and should be checked out per each individual state - I believe someone from Washington or Oregon gave us a an cite disallowing it in their state.

All that said, who am I, as a notary, to sit at a table and read and interpret a POA. If someone appears before me and says that the document gives them the power to sign, they can sign away.

Reply by Shelly_FL on 6/6/08 12:55pm
Msg #250266

If I am understanding you correctly, Sue, you are saying the prohibition of taking an oath of an AIF does not apply to notaries in PA?

If I apply your logic in all notarizations, when a person sits before me and tells me they need to notarize a copy of their Birth Certificate, as a notary I should let them "sign away"?

This logic would not fly in Florida. I believe that is the point being made.

Reply by sue_pa on 6/6/08 2:01pm
Msg #250276

What does taking an oath have to do with notarizing a copy of a birth certificate? My point is that I am not going to read a 15 page Power of Attorney and make a legal determination as to whether or not the powers given in it are enforceable or not.

By the way, in PA we are given specific direction that we may not certify a birth cert so that's not even a grey issue here.

Reply by PAW on 6/6/08 1:00pm
Msg #250267

You missed the point, Sue. "An attorney-in-fact may not sign a document stating that the principal has knowledge of certain facts."

It doesn't make any difference if the AIF knows the facts or not, but an AIF cannot state that the PRINCIPAL does. It is a far cry from a "signing agent myth", at least here in FL. The courts have upheld this point (don't have the case law handy) and the FL Bar makes this point very clear.

If the AIF knows the facts, then the AIF needs to be placed under oath and so state on their own, as an individual not in a representative capacity.

Reply by sue_pa on 6/6/08 1:59pm
Msg #250275

okay, I see what you're saying. I just checked with my state notary assoc - it took all but 45 minutes to say they can't say. I'll write a letter to the chief counsel's office next week for clarification for PA. You have specific direction in FL. My point is I am guessing many other states do not - that's why I say this is one of the 'signing agent myths'. People read these boards and see that it can't be done in FL so they assume (yes, I know) that it applies everywhere. I will let you know when/if I get a response from my state. I will be VERY interested on their take since I've seen attorney's take oaths for 30 years and never bat an eye. Before the comments are made, I realize attorneys don't 'know' everything but I don't have enough fingers and toes to count the ones that seem to think it's acceptable here.