|Opinions on POA Procedural Question for general notary work|
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|Opinions on POA Procedural Question for general notary work|
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Posted by Roger_OH on 7/18/10 11:43pm
Opinions on POA Procedural Question for general notary work
I'm up at the National Secretaries of State Conference in Providence, RI this week (I'm a member of the NP Administrators section). Lovely area.
During a discussion on POAs, I commented that it was NOT necessary for the notary to verify the POA status of an AIF signer (this is for general notary stuff, not loan signings where the Lender/TC approves it), and some disagreed with me, saying that we did have to verify that the AIF had the authority to sign by seeing the POA document.
This has been discussed on the board before, but would like to refresh and reinforce the rationales that it's not our responsibility to review the POA document. Are there state differences about this?
Reply by Marian_in_CA on 7/19/10 12:20am
Not in California...
As mentioned before here, determining or certifying capacity is against the law for the notaries in California.
Roger you were right. If we take it upon ourselves to determine one's capacity or authorization to sign a document, we're overstepping our duties IMO. (CA Civil Code 1189, and several others)
Reply by Stoli on 7/19/10 11:49am
CA Civil Code 1189
Changes to California notary Forms — January 1, 2008
The California Legislature amended Civil Code section 1189, effective January 1, 2008, to alter the required wording of the Certificate of Acknowledgment form. Recorders are likely to reject any document submitted for recording on or after January 1, 2008 that does not use the new wording.
The new wording (Section 2 of AB 886) changes the wording required by Civil Code Section 1189 to read as follows:
(a) Any certificate of acknowledgment taken within this state shall be in the following form:
State of California
County of ___________
On ______________________ before me, (here insert name and title of the officer), personally appeared __________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ____________________________ (Seal)
Reply by Marian_in_CA on 7/19/10 12:28pm
Re: CA Civil Code 1189
That's not quite all of it...what you have there is just part 1 of that section. The meat of it is in part 2.
Part (2)(c): "...a California notary public may complete any acknowledgment form as may be required in that other state or jurisdiction on a document, provided the form does not require the notary to determine or certify that the signer holds a particular representative capacity or to make other determinations and certifications not allowed by California law."
In context they're talking about acks to go out of states, but the real issue is the last part, and the reason why this rule exists.... *because* certifying capacities is against the law for us.
The CA ACK wording is specific for a reason, in that it indicates the signer is claiming their capacity/authorization to sign -- it has nothing to do with the notary determining or certifying it.
Reply by GOLDGIRL/CA on 7/19/10 12:28am
Interesting point, Roger - but in CA it's a dead issue because it's not up to us to determine capacity. In any case, in a general notary work situation, even if someone handed me a POA to "prove" they were signing as AIF, how would I know if the POA was "real"? On top of that, POAs can have all sorts of limitations - an AIF may sign for one thing but not for another, and on it goes. To expect a notary to read through an alleged POA and determine if the AIF has the authority to sign whatever document they present - no way.
Reply by Marian_in_CA on 7/19/10 1:53am
Totally agreed with this... if somebody handed me a POA document to prove their ability to sign, I would hand it right back to them. It's just none of my business. I honestly don't care who they are. If they claim to have the capacity to sign, then that's on their heads if they don't. To have determine capacity would be interpreting a legal document, which is UPL to be sure.
People are always under the impression that a notarization make a document legal or official...it's probably the biggest myth about our jobs out there.
If I notarize John Doe's signature on a document wherein he claims to be POA. That's great... my seal has nothing to do with the document, just his signature. If he lacks the authority to to sign, it's still an improper signature, no matter what I did.
In fact, any idiot who, lacking authority, is dumb enough to actually get their signature notarized is essentially creating their own damning evidence. At least, it is if they go to any notary worth his/her salt and keeps proper records.
Reply by ReneeK_MI on 7/19/10 5:02am
The NPA's discussed a similar situation (a notary 'certifying' that someone had the legal capacity to sign the document) on their list-serve early this month. Their opinions were not only that it would be UPL, but that the notary should be reported for UPL.
To examine any legal document and make a determination as to it's validity, applicability, and/or authenticity under the law requires ....a law degree.
Reply by PAW on 7/19/10 7:31am
As it pertains to Florida ...
Per the Florida Governor's Reference Manual for Notaries (ed 2001, pg 40):
"It is not the notaryâ€˜s responsibility to ensure that the signer has power of attorney. The person states he has that authority and indicates this fact when he signs - just accept his word.
Note: If you are notarizing in connection with your employment, you may need to require a copy of the POA for your employerâ€˜s files."
However, in certain circumstances (e.g. real estate transactions) the AIF may be required to complete an Affidavit of Attorney in Fact, pursuant to Section 709.08(04), Florida Statutes, which states, in part:
"(c) An affidavit executed by the attorney in fact must state where the principal is domiciled, that the principal is not deceased, and that there has been no revocation, partial or complete termination by adjudication of incapacity or by the occurrence of an event referenced in the durable power of attorney, or suspension by initiation of proceedings to determine incapacity or to appoint a guardian of the durable power of attorney at the time the power of attorney is exercised. "
An example of this affidavit that is approved for use in accordance with FS 709.08, can be found on my website as well as the FL statutes. (http://tinyurl.com/kcf6a)
Reply by Bob_Chicago on 7/19/10 8:05am
IMO, a NP has no sure way to verify the authenticity of
Even if they hand you a doc with a gold seal, red ribbon and blood smear, you have
no knowledge that the person who granted the POA is still, in fact, alive.
If I do general notary work, which I rarely do, I use a form of ack that has an optional section
showing the "Capacity CLAIMED" by the signer, (eg POA, vice-president, trustee, etc. )
Reply by C. Rivera Chicago Notary Services on 7/19/10 9:04am
Bob, it says that on the acknowledgment literally...
"Capacity claimed..."...I'd be very interested in seeing that acknowledgment, can you email a copy to me.
Reply by C. Rivera Chicago Notary Services on 7/19/10 9:05am
sorry was mean for pm to Bob.. oh geez... n/m
Reply by Michelle/AL on 7/19/10 9:12am
Well I'm glad you posted in the forum because it reminded
me that I may have some loose certificates that have that language too. I'll check and let you know. I purchased a variety of loose certs when I got started. Of course, I use my fair share of Acks and Jurats. Hmm...yes...I think the certs I'm thinking about that may have that language are called AIF certificates.
Reply by PAW on 7/19/10 9:20am
Re: Well I'm glad you posted in the forum because it reminded
I too have some certificates that are worded expressly for when someone signs as an AIF.
For example: http://www.pawnotary.com/forms/FL_certificates/All%20Purpose%20Acknowledgment%20by%20Attorney%20in%20Fact.pdf
This form also includes the "optional" section where the "claimed" capacity can be shown.
Reply by C. Rivera Chicago Notary Services on 7/19/10 9:36am
This subject never gets old because it's one of those good discussions on this forum...
And no, I agree its not our responsibility to review the POA document prior to notarizing signatures.
But I do sometimes ask if they have a copy of the POA, and if they can, to bring it to the appointment, whether its a general notary gig or a closing.
If they don't have a copy, I don't press the issue, in that I still go on with the notarization. And if its a closing, I ask the hiring company if they need a copy and how exactly they want this person to sign.
In IL, the law doesn't say whether or not we should verify the POA status of an AIF signer, so I assume no, its not in our normal authority. But I ask anyway, I guess out of habit from being a litigation paralegal (fancy word for anally organized legal paper pusher). But again, I don't press the issue of whether they have a hard copy or not.
Reply by Philip Johnson on 7/19/10 12:01pm
Here's the form that WA has for representative's
(2) For an acknowledgment in a representative capacity:
State of Washington
County of . . . . . . . .
I certify that I know or have satisfactory evidence that (name of person) is the person who appeared before me, and said person acknowledged that (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the (type of authority, e.g., officer, trustee, etc.) of (name of party on behalf of whom instrument was executed) to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated: . . . . . . . . . . . .
. . . . . . . . . . . .
(Seal or stamp)
. . . . . . . . . . . .
expires . . . . . . . . . . . .