Posted by Dennis D Broadbooks on 12/9/05 9:42am
Msg #81412

POA/Jurat Revisited

If I may, I'd like to revisit the topic of power of attorney (POA) situations as it relates to an attorney in fact taking an oath for the principal in a document with a jurat Notary certificate. First of all I can relate in spades to what BrendaTX had to say about how "nebulous" the Notary rules are in Texas because the statutes in Missouri are "Silent Night" (a little Christmas lingo thrown in!) on this topic as well. Over the past five years I've broached several different scenarios like this POA/Jurat to our Secretary of State's office & depending on the sun, moon, & stars lining up just right I've actually gotten some cogent responses. The problem is the next time I call in (evidently under distinctly dissimilar astrological circumstances) with a similar question I receive a 180 degree opposite response.

This POA/Jurat dilemma is a case in point. I know within the past year or so I've discussed this with our SOS & by my best recollection their position lined up with PAW in FL. You can't have someone swear to the truth of something they may or may not have any knowledge of...because they're NOT the principal named in the document. However when I called in this morning to discuss this issue (along with several others I've been intending to broach with them) I was informed that it's NOT the Notary's problem & that it's perfectly proper to place the attorney in fact under oath as a "mouthpiece" for the principal. They went on to say that this doesn't mean the document will hold up in court, but the "Notary has still done their job properly" & from the SOS's perspective that's all that matters.

I've also been told (like you Paul) on numerous occasions by our SOS when I've asked a question they couldn't or wouldn't answer, that I need to contact an attorney. Needless to say I normally would never follow that advice (from a monetary perspective if for no other reason) unless it would be absolutely necessary. It's my opinion as well that the vast majority of Notaries Public who have any experience & wherewithal under their belt have more knowledge of the application of Notary statutes than 99% of the attorneys out there. JMHO!

Reply by B__CA on 12/9/05 10:07am
Msg #81417

Totally agree with that last sentence, it says it all!

Reply by BrendaTx on 12/9/05 11:47am
Msg #81447

Dennis, Your insight is helpful. Very much so.

I knew when I posted the info I did that many who have a lot more NSA experience than I would have a hard time with the first situation of 'Jurat okay with POA'

I finished the job again last night. The opinion had flip flopped and it was not okay - needed other certificate. This time it was determined by lender that attaching an ack would be acceptible to lender.

My question (and I may have asked this already - I did mean to if I am repeating myself) is asked because these guys in CA acted as if I was nuts for even thinking such a thing.

Where is CA's notary rule on this?

Thanks everyone for the input.

Reply by Marlene_USNA on 12/9/05 2:52pm
Msg #81494

We answer such inquiries with "A person cannot take an oath for another person, just as a person cannot sign another person's name."

Many attorneys have called us on the latter because they routinely sign client's names for POA transactions. We insist that the signature must be "John Smith as agent for Fred Jones," and not "Fred Jones" because to sign the principal's name only would be forgery.

We insist that the oath must be, "I, John Smith as agent for Fred Jones, do hereby swear or affirm. . ." and not "I, Fred Jones, do hereby swear or affirm. . ." and the wording must be the agent's statement and not the principal's. It doesn't matter if the agent knows the truth of the principal's statement or not - he can't swear to be Fred Jones if he's not.

That's our position and we're sticking to it. USNA also has trouble getting consistent answers from different SOS offices.

Reply by sue_pa on 12/9/05 3:12pm
Msg #81498

quite interesting. The last time I spoke w/Marc I asked him this very question and he said he hadn't ever really thought about it before and that it would bear further thought. That was within the past 6 months.

Reply by Marlene_USNA on 12/9/05 3:29pm
Msg #81508

I don't know why he would say that. We spell it out on page 156 of the latest "Practical Guide for Notaries Public in Pennsylvania," which, of course, he reviewed. I'll bring it to his attention.

Reply by Dennis D Broadbooks on 12/9/05 3:38pm
Msg #81511

This Begs the Question...

...what is the attorney in fact (agent in your example) swearing TO? Is he/she simply swearing to be the legal attorney in fact or is he/she attesting to the truthfulness of the contents of the document? Most jurat Notary certificates don't state we're placing the attorney in fact (or principal, for that matter) under oath for the purpose of verifying they are who they say they are. Usually the wording in the document & corresponding certificate states the person being placed under oath is testifying to the veracity of the contents of the document itself.

This then leads to the question; what should be the wording of the oath/affirmation we give to the attorney in fact? Should it be: "Do you John Smith, as attorney in fact for Fred Jones, solemly swear the contents of this (name of document) to be true, to the best of your knowledge, so help you God?"