Reply by Bethy_CA on 8/12/05 4:14pm
Msg #58664
Actually...I take back what I said above...sort of
What about a Subscribing Witness? Not sure what state you're in, but in CA we can notarize using a subscribing witness for documents other than deeds, mortages and security agreements. (Ref CA handbook, pg 10 Gov code#27287).
I've never done one personally...and I would still be hesitant to do it at all for a POA. But at least in CA, there seems to be a possible way around it....but as the notary, you must have a credible witness in common.
The text from the handbook for those interested:
=============================================================
If a person, called the principal, has signed a document, but cannot personally appear before
a notary public, another individual can appear on that principal’s behalf to prove the execution
by the principal. That person is called a subscribing witness. (Civil Code section 1195)
NOTE: A proof of execution by a subscribing witness cannot be used in conjunction with
any Deed of Trust, Mortgage, Security Agreement, Quitclaim Deed, or a Grant Deed
document. (Government Code section 27287)
The requirements for proof of execution by a subscribing witness are as follows:
1. The subscribing witness must be able to say, under oath, that he or she either saw the
principal sign the document or heard the principal acknowledge that he or she signed
the document. (Code of Civil Procedure section 1935)
2. The subscribing witness must personally know the notary public, or if the subscribing
witness does not personally know the notary public, then his or her identity must be
established, or proved, by a third party. That third party must personally know both the subscribing witness and the notary public. (Civil Code section 1196) That third party
is called a credible witness. Since the subscribing witness must be personally known
by the notary public, or by one credible witness, paper identification cannot be used in
establishing the subscribing witness’ identity. (Civil Code section 1196)
3. The subscribing witness must sign the document. (Code of Civil Procedure section 1935
and Civil Code section 1197)
4. The subscribing witness must sign the notary public’s official journal. (Government
Code section 8206(a)(2)(C)) In addition, if the identity of the subscribing witness was
established by a third party, or credible witness, then the credible witness must also sign
the notary public’s official journal. (Government Code section 8206(a)(2)(D))
The following scenario provides an example of how Proof by Subscribing Witness form
may be used:
The principal, Steve, needs to get a document notarized. Steve is in the hospital and, therefore, cannot appear before Cathy, the Notary Public, in order to get his signature notarized. Steve’s longtime friend, Joe, is at the hospital visiting Steve. Steve tells Joe that he needs to get a document notarized. Since Steve can’t leave, he asks Joe, the Subscribing Witness, to get the document notarized on his behalf. Steve could have either signed the document in Joe’s presence or have signed it prior to Joe’s arrival. If the document was signed prior to Joe’s arrival, Steve would need to have acknowledged to Joe at that time that he signed the document. Steve then gives the document to Joe. Joe, who personally knows Notary Public Cathy, goes to her office and advises her that Steve wants to get the document notarized.
Joe must sign or have signed the document as the Subscribing Witness. Cathy, in her
capacity as a Notary Public, must place Joe under oath. Under oath or affirmation, Joe then
swears to Cathy that Steve signed the document, that he personally knows Steve, and that
Steve asked him to get the document notarized.
Since Joe is the person who appeared before Cathy, Joe must sign Cathy’s notary public
journal. Cathy notarizes Joe’s signature and then enters the information in her journal entry. In that Joe is the subscribing witness and paper identification is not allowed, Cathy does not enter Joe’s driver’s license in her journal. Joe then takes the document back to Steve.
Shown below is a suggested format for proof of execution by a subscribing witness. Other
formats with similar wording may also be acceptable.
State of California
County of _____________
On __________ (date), before me, the undersigned, a notary public for the state, personally
appeared _________________ (subscribing witness’s name), personally known to me (or
proved to me on the oath of _________________ [credible witness’s name], who is
personally known to me) to be the person whose name is subscribed to the within
instrument, as a witness thereto, who, being by me duly sworn, deposed and said that he/she
was present and saw/heard acknowledged _________________ (name[s] of principal[s]),
the same person(s) described in and whose name(s) is/are subscribed to the within and
annexed instrument in his/her/their authorized capacity(ies) as (a) party (ies) thereto,
execute the same, and that said affiant subscribed his/her name to the within instrument as
a witness at the request of _________________ (name[s] of principal[s]).
WITNESS my hand and official seal.
NOTARY PUBLIC SIGNATURE NOTARY PUBLIC SEAL
NOTE: It is not acceptable to affix a notary public seal and signature to a document
without the notarial wording.
=============================================================
|
