Posted by Rachel/ORWA on 2/14/08 4:12pm
Msg #235316

Here's an interesting situation re: Conservatorship (long)

This has been a bit of a saga, which I’ve discussed off-board with a couple NotRot members, but I’ll cut right to the chase:

Reverse Mortgage in which Mrs. Borrower has a conservatorship for the person and estate of Mr. Borrower (who is in a nursing facility). All docs except the DOT are in the names of Mrs. Borrower and Mr. Borrower, with pre-printed signature lines of
~Mrs. Borrower~ and ~Mr. Borrower by Mrs. Borrower, Conservator~.

The signature lines on the DOT are pre-printed the same as all the others, but the vesting reads “Mrs. Borrower and Mrs. Borrower as Conservator for the Person and Estate of Mr. Borrower, Conservatee.”

The TC directed me to have her sign as
~Mrs. Borrower~ and ~Mrs. Borrower, Conservator~
(NOT ~Mrs. Borrower~ and ~Mr. Borrower by Mrs. Borrower, Conservator~).

Two issues arose from this:
1) Oregon does not allow Jurat wording for representative capacity; a separate acknowledgment must be attached.
2) Even if I were to attach loose Acknowledgments in a Representative Capacity, there would be nothing for me to put in the blank “as Conservator of _______________”.

The upshot is that I had her sign as instructed by the TC, and filled in the Jurats and Acknowledgments for Mrs. Borrower, only.

Thoughts?

Reply by sue_pa on 2/14/08 4:50pm
Msg #235325

Naturally I can't help (or not help) with an opinion because I'm in another state and know nothing about Oregon law but I do have a question about your issue #1. Why do you say your state does not allow jurat wording for a representative? Is it written somewhere or is that an interpretation? Then regarding the second part of that statement - why would the state direct you to attach an ack in place of a jurat - they don't serve the same purpose.

Reply by Rachel/ORWA on 2/14/08 5:09pm
Msg #235332

Sue...

On issue #1: Oregon law states specifically that the person under oath is the person whose signature is on the document. The SOS further states in the guide that "an oath cannot be done on behalf of someone else".

As far as using an acknowledgment, it is the only choice when a TC wants a notarization for someone signing on behalf of another.

Reply by GA/Atty on 2/14/08 4:53pm
Msg #235326

It does not make much sense to me that some docs would be signed one way with other docs to be signed differently.

But that really isn't your problem; it isn't your job to know how deeds needs to be signed to conform with recording requirements.

My advice is to hold onto the TC's instructions they gave you so that, if they call you back to have her re-sign the DOT, there will be no doubt that it wasn't your fault it didn't get done right the first time.

Reply by Rachel/ORWA on 2/14/08 5:11pm
Msg #235334

I asked for their instructions in writing...

and printed the emails for my records. I did express my concern that the Deed may be rejected. However, this is the first conservatorship I've encountered, and I'm willing to concede my lack of knowledge regarding them. Perhaps it will record without issue.

Believe me, I covered my heinie as best I knew how!

Reply by Bob_Chicago on 2/14/08 6:21pm
Msg #235353

Not legal advice , yada yada, but Mrs B may not be signing..

in a representative capacity on behalf of Mr. B.
This is not a situation such as a POA when one person is
signing on behalf of another PERSON. If there is a true
conseratorship, then a Judge probably ruled that Mr B is not
competent is act on his own behalf. Mrs B is acting on behalf of the conservator estate .
Similar situation to a trust of deceased estate.

Reply by Susan Fischer on 2/14/08 7:08pm
Msg #235364

But, Bob, he's not dead. He still has his ownership

interest in the property and is on the deed which, requires his signature (in some fashion) in order to record: His name, by her name, in a representative capacity.

Reply by Susan Fischer on 2/14/08 6:24pm
Msg #235354

Doesn't it boggle the mind that some TCs simply won't

listen to reason regarding individual states' laws, especially from notaries whose business it is to know their laws? Not to mention the lack of logic in this case...how can anyone look at the vesting, and decide Mr. Borrower's name is not to appear on the sig line of the DOT either by his hand, or by another's in a representative capacity?

Prediction: It won't record; there will be a re-draw, re-sign, and the TC will ~still~ have not learned a lesson. Of course, there is the possibility that it could slip by the county clerk...but that won't make it right.

Interesting scenario, Rachel.

Reply by BrendaTx on 2/14/08 10:31pm
Msg #235397

Re: Here's an interesting situation re: Conservatorship (lon

I think the way it is drawn is accurate.

In Texas it would be a guardianship. I had to parallel that to your "conservatorship" term.

A guardianship is what you get if the mentally incapacitated person (ward) has not executed a durable POA prior to such incapacity for such situations as this. Once they are mentally incapacitated obviously they cannot execute a POA because they lack mental capacityso then a guardianship must be applied for through the probate court.

The court then must decide if the ward needs a guardian. The guardian will then take over the entire estate of the ward and make all decisions concerning it. Under almost all circumstances a guardian must report annually to the court on how the money is spent, etc. The court awards certain powers to the guardian. Anything outside of that must be requested of the court by the guardian. So someone is always looking over the shoulder of the guardian to assure there is nothing amiss.

Much like the estate of a decedent which must be managed and probated by an administrator or an executor (depending on whether or not there was a will) the ward's estate is completely under the control of the guardian. The guardian is given letters of guardianship (much like letters testamentary in a decedent's estate) and the guardian is then able to make all decisions for the ward's person and the ward's estate by presenting those letters. (There are variances but this is the gist of it.)

In Texas the DoT would probably be "Mrs. Borrower, and Mrs. Borrower in her capacity as Guardian of the Estate of Mr. Borrower".

There would be two sets of signature lines and two sets of notarial certificates...one for Mrs. Borrower, Individually. One for Mrs. Borrower in her capacity as Guardian of the Estate of Mr. Borrower.

It would be quite acceptable for a Texas notary to notarize jurats or acks made out as stated above. In the case of a jurat, Mrs. B would be swearing in her capacity as Guardian of the Estate of Mr. Borrower...not on behalf of Mr. Borrower.