Posted by LisaWI on 8/24/07 7:50pm
Msg #207585

POA Question?

We all know that we cant complete a jurat for a person who is POA for another, correct?? We can only swear in the person who is in front of us.
Maybe someone can explain to me the difference in this situation to a POA.
Doing some reading here in my wonderful Notary Public Handbook by Alfred Piombino(thank you PAW ), and it states in the chapter of oaths and affirmations:
"A corporation or a partnership cannot take an oath. An oath can only be taken by a natural person. A business firm such as a corporation is an artificial person. An individual representing the organization must take the oath. His relationship to the business or organization should be stated in the document."
Can anyone explain to me why a POA cant do the same, they are representing someone else just like a person representing a company, or am I not thinking right?

Reply by Lee/AR on 8/24/07 8:08pm
Msg #207588

My take: (logic; not legal) A person representing a co. can/does/ought to control the co--the artifical person. This can not be said for someone acting with a POA. Someone with a POA does not really know what the other person knows and so can't swear to the veracity of 'whatever'.

Reply by MikeC/NY on 8/24/07 8:26pm
Msg #207593

My guess would be that it's simply because a corporation or partnership is not a natural person - it can't take an oath, so one of its officers or partners must do that in its place.

In the case of a POA for an individual, however, there IS a natural person behind it. The attorney in fact can ACT in that person's place, but cannot take an oath in that person's place - how could he or she reasonably swear to the truth in a document in the name of someone else, without knowing whether the information is true?

Reply by LisaWI on 8/24/07 8:48pm
Msg #207597

Yes, but if they are also signing the document themselves "stating that it is true" and they are not telling the truth, then they have already committed perjury. When they sign as POA on the document, and they are not telling the truth, wouldn't it be them in trouble because they are representing the principal? Or would they both be in trouble?
I quess I dont see the difference in an acknowledgment and a jurat when indeed the person is acting for the principal either way. If the intent was unlawful with the use of a POA it wouldnt matter if it was an acknowledgment or a jurat.

Reply by snoopdogMs on 8/24/07 9:56pm
Msg #207604

What if the person being represented is actually present at the closing but cannot sign because they are a stroke victim and the hand does not function? Does their presence mean anything when it comes to a jurat? I had a closing with this scenario and I just wrote in the name of the person being represented, leaving off the bla,bla bla, by His Attorney in fact. I did this because this man was actually present even though his brother signed all the docs. Of course I got a call from the Lender about this. Usually a POA is used because the borrower cannot be physically present. Any thoughts?

Reply by JK/TX on 8/25/07 12:09am
Msg #207624

IMOO Notary -v-??

I am not sure what you are asking...but.... corp's, trust, any business entities do not appoint POA's as a rule. They will produce a resolution to appoint someone in the corp that is in the articles or if a trust, the trust is revised w/a successor trustee if the successor is not already appointed in the trust agreement...... and they can/do sign jurats as joe blow, the ??? yada, yada... Here, the jurat is being "pushed" to include more than "subscribe and sworn before me this () day "end of sentence.........." To be recorded the jurat must include names, etc's....

hope this helps.
imo

Reply by BrendaTx on 8/25/07 9:08am
Msg #207633

There's a difference in the way the two below are worded. One I feel comfortable with and one I am reluctant to do without an attorney at my elbow.

*Subscribed and sworn to before me a notary public by Jane Doe, attorney-in-fact for John Doe. *

*Subscribed and sworn to before me a notary public by John Doe by his attorney in fact, Jane Doe."

However, I truly believe if the POA is in good order to allow for the act, no one will ever challenge either of those. (Nothing I "believe" should be construed as fact...it's jmho.) Notaries nor the SoS represent the final answer on all things legal. And, poorly worded jurats are not the mark of an evil force designed to commit fraud upon lender or borrower.


JK/TX is correct about entities having resolutions which give the person appearing before the notary the right to swear and acknowledge on behalf of the entity. It's not a POA related act in my experience.

Reply by PAW on 8/25/07 9:05pm
Msg #207698

Florida, and many other states, allow for a third person (or even the notary) to act as the "hands" of a signer. This is not a POA as the principal is not giving any authority for the third party to act on his/her behalf in a decision process, but only for signing the principal's name due to a physical limitation.

The following is an excerpt (page 39) from the Florida Governor's Reference Manual for Notaries for reference:

For a Person with a Disability Who Directs Another to Sign

On a rare occasion, you may be asked to notarize the signature of a person who cannot sign a document in the usual manner. An individual with a disability may direct a notary to sign on his or her behalf. §117.05(14)(b)(d). In a sense, one person substitutes his hands for the hands of the person with a disability. You may notarize this signature but you should indicate the unusual circumstances in the notarial certificate. The following guidelines may be helpful.

Question the person to make sure that he or she understands the nature and effect of the document to be signed. If the person is blind, read the entire document to him or her. If the person does not understand, refer him or her to an attorney for legal advice and do not proceed with the notarization.

Ask for proper identification from the person with a disability. It is not necessary to require identification from the designated signer. Think of that person only as the "hands" of the person with a disability.

The notary may then sign the signature of the person with a disability at the direction of and in the presence of that person.

Perform the appropriate notarial act: administer an oath or take an acknowledgment. Your notarial act should be directed to the person with a disability.

Complete the notarial certificate with the required information. When stating whose signature is being notarized, it would be best to indicate the special circumstances of the signing.

Two persons with no interest in the transaction must witness the signing of the document and the notarization and that their names and addresses be clearly printed below their signatures. Unless otherwise required by law for the particular document, it is not necessary for the witnesses’ signatures to be notarized.

Be sure to get the witnesses and the designated signer to sign your journal and make appropriate notes.

Reply by BrendaTx on 8/26/07 7:09am
Msg #207715

Re: POA Question? SnoopdogMs...Texas answer

http://tlo2.tlc.state.tx.us/statutes/docs/GV/content/htm/gv.004.00.000406.00.htm

§ 406.0165. SIGNING DOCUMENT FOR INDIVIDUAL WITH
DISABILITY. (a) A notary may sign the name of an individual who is
physically unable to sign or make a mark on a document presented for
notarization if directed to do so by that individual, in the
presence of a witness who has no legal or equitable interest in any
real or personal property that is the subject of, or is affected by,
the document being signed. The notary shall require identification
of the witness in the same manner as from an acknowledging person
under Section 121.005, Civil Practice and Remedies Code.
(b) A notary who signs a document under this section shall
write, beneath the signature, the following or a substantially
similar sentence:
"Signature affixed by notary in the presence of (name of
witness), a disinterested witness, under Section 406.0165,
Government Code."
(c) A signature made under this section is effective as the
signature of the individual on whose behalf the signature was made
for any purpose. A subsequent bona fide purchaser for value may
rely on the signature of the notary as evidence of the individual's
consent to execution of the document.
(d) In this section, "disability" means a physical
impairment that impedes the ability to sign or make a mark on a
document.

Added by Acts 1997, 75th Leg., ch. 1218, § 1, eff. Sept. 1, 1997.

Reply by sue_pa on 8/25/07 8:52am
Msg #207632

...We all know that we cant complete a jurat for a person who is POA for another, correct??...]

No, we don't 'KNOW' that. That is another 'fact' bandied about these boards all the time. I've had countless lawyers sign on behalf of their principal, sign as executor/administrator of an estate, etc. Are they correct? Not my call. Who am I, as a notary, to read and interpret a POA and decide whether or not a clause is included and whether or not it would pass muster in a court of law ? Someone presents themself to me and says, "Here is a POA, I have authority to sign this document". That is good enough for me. I can't read through the POA and the document presented for notarization and make the legal determination whether or not they mesh. Think about it - for our jobs, lenders all know (if we do our jobs correctly) when a POA is going to be used. If their legal departments didn't want jurats used on the documents when a POA is utilized, doesn't someone think that sometime throughout the years they would have come up with an alternative. One more thing that's not our call. I personally read these boards and shake my head at what others think UPL consists of - I think making this determination on your lown absolutely is UPL.

All that said, the POAs my family all have doesn't specifically grant the power to take an oath for another; however it does say "Giving and granting unto my said agent full power and authority to do and perform all and evyer act, deed, matter and thing whatsoever in and about ..." Who is a notary to say that I can't take an oath for one of my sisters? If someone presents me with a document that says Big Sister has been known by these names in the past I can and would swear to it. If someone presented me with a document that says Little Sister was at Main & Elm Street corner on August 25, 1972, I couldn't swear to it. Point being, there are MANY things I would be comfortable swearing to for my parents, sisters, children. There are just as many things I couldn't swear to.

Reply by LisaWI on 8/25/07 9:17am
Msg #207634

Re: Thank You Sue!

That is exactly my point, we dont know that. I said that to see if someone would offer some concrete evidence that is written somewhere, notice the question marks.
Where is it "written or dictated" a person signing on behalf of a principal cannot take an oath for that person.
Know Im going by our notary laws here in Wisconsin and we can notarize a signature in a representative capacity. The examples they give though only give an acknowledgment or a unsworn signature as the example. If an affidavit was being executed in Wisconsin and it could be signed as POA then I would think the example would be given as such, but it isnt.

Reply by LisaWI on 8/25/07 9:54am
Msg #207639

Re: Ahaa!!

Found something else in the Notary Public Handbook that relates. This is in the Affidavit chapter. "If the person signing the affidavit is not the same person named as having been sworn, the affidavit is void."

Reply by PAW on 8/25/07 10:12am
Msg #207642

Re: Ahaa!!

And the first line in an affidavit typically reads, "before me, appeared JOHN DOE, who being duly sworn ..." Where JOHN DOE is the principal, not the attorney-in-fact.

Reply by PAW on 8/25/07 10:08am
Msg #207641

Re: Thank You Sue!

Your thinking is correct Lisa. According to the FL SOS, the absence of a directive does not mean that one can perform taht directive. Typically laws are written as to what one can do (or is authorized to do), not what one can't do. If it isn't written in the notary statutes, it is not authorized. Acknowledgments by representative capacity are authorized and directives are written accordingly. Oaths and affirmations (jurats) by representative capacity are NOT authorized since there are no directives written authorizing the act.

<<I am not an attorney licensed to practice law in the State of Florida, and I may not give legal advice or accept fees for legal advice. The comments above are my personal opinion and are not to be construed as legal advice or legal opinion.>>

Reply by LisaWI on 8/25/07 11:19am
Msg #207654

Re: Thanx PAW

What my opinions are about this are irrelevent, I must follow my laws. And that is what the law says to me. It is written in black and white so there is no misunderstanding. Now, if this wasnt clearly defined in our notary pamplet, then I would be questioning it. Coincidently, I looked at your notary pamphlet and noticed they do not provide for an unsworn signature. Anyone else have this in their notary laws?? In ours it is refenced right with the POA notarization act.