Posted by SoCal Signing Co. on 7/22/08 7:51pm
Msg #256358
funny signing request
Broker asks us to get a grant deed signed.
No problem right?
there are two names on the Grant Deed, one person meets us and signes the Grant Deed in both places! HMMMM
We call, Broker, whats up?
he says its legal, she has power of attorney. (not signed as poa, and POA is not legal on a Grant Deed when the other signer is cleary vested on Deed.)
I say ... no no no just give us the other parties number we will get it done........ long pause
well, he says.... "THE OTHER PARTY DIED 2 YEARS AGO".
GAVE US A LAUGH!
LISA
| Reply by Sharon Taylor on 7/22/08 8:02pm
Msg #256359
Unreal request, Lisa
That is one shady broker, and he shouldn't be in the business! Even if the signing party had a POA at one time, her POA powers ceased the moment the other party died. And the broker most certainly had to have known that. He was just hoping you were a clueless uneducated notary. Boy, did he get a surprise. LOL
| Reply by davidK/CA on 7/22/08 9:33pm
Msg #256369
Re: Unreal request, Lisa
If one were the curious type you could check with the County Recorder to see if the Grant Deed has been recorded with a false notarization. Then of course if it was notarized and recorded it would be up to you to as to when you called the SOS to report the facts.
Reporting fraud and identity theft is one way we can get rid of the bad apples and clean up this industry.
| Reply by MistarellaFL on 7/23/08 1:07am
Msg #256386
Don't be hostile....there's prolly another newbie out there
for you and he to manipulate.
| Reply by BrendaTx on 7/23/08 5:40am
Msg #256394
I couldn't tell if Lisa knew whether or not it was okay
to utilize a POA of a dead person to transfer property and was glad to see Sharon posted it.
Not being ugly by saying that, just stating I could not tell if the joke was the extinguished signer or that she would not send the deed back with her notary's seal on it.
I think this post brings a good point for thought.
I see an issue with it. Even Texas might balk at a notary *knowing* that the subject of the POA was dead and notarizing the AIF's signature. I say that because I have read something on it...case law or something, but I won't be trying to research it.
| Reply by John_NorCal on 7/23/08 11:53am
Msg #256438
Re: I couldn't tell if Lisa knew whether or not it was okay
I think a case could be made that if a notary knew that a signer was gone and buried and still relied on that POA, said notary would be complicit in an illegal act. For my money, I would just walk. Seems like a snake of a broker who knew better but wants to get something over.
| Reply by sue_pa on 7/23/08 7:30am
Msg #256399
A few years ago I was assigned a purchase that I didn't complete. The owner of the title company said I was the "WORST" notary she had ever dealt with and she'd never use me again. So sad.
I don't remember how it came up in conversation on the phone but the seller indicated she was POA for the property owner and she'd be signing on his behalf. Again, not sure what was said but she told me he had passed away. I asked if the title company knew this and she assured me they did. I assumed she was mistaken and that she was going to sign as executor of the estate. I called my client to see what was going on. In PA, we have a special deed used for estate selling real estate. I had a regular deed with my paperwork. Sad to say, this was a PA title company and they didn't even know what an executor's deed was. They told me to mind my own business, not to worry about it, etc. She was signing using the POA. I stepped aside. I did look later and the deed was recorded. I feel very sorry for the young people who purchased that house should anyone ever really do a thorough and proper title search (something that's probably not going to happen ever again). I figured out what had happened. The property was being sold prior to the guy's death. Unfortunately, his timing was off. No one wanted to hold up the sale due to the buyer's rate lock expiring. So, rather than probating the will and the POA getting the proper authority to sign on behalf of the estate, they just proceeded. In the very end, there probably wouldn't be any problems. The procedures in the middle were quite wrong and illegal.
I always wondered after the fact. As a notary, if someone tells me they have authority to sign I accept their word for it, get a copy of the POA and notarize away. I know from working in a law office for decades and also as a matter of living life that a POA ceases upon the death of the principal. I'm not sure where the line gets drawn in a case like this between us determining that the POA is no longer valid and the liability falling on the shoulders of the individual signing.
| Reply by Hugh Nations Signing Agents of Austin on 7/23/08 8:37am
Msg #256409
My recollection is that a power of attorney coupled with an interest can survive the death of the principal and can continue until the interest itself is eliminated or expired, absent some agreement to the contrary. I asume, though I don't know, that this could apply to real estate. However, if the signer says he is signing under a POA, it isn't my job to ascertain the nature of the POA, and whether it authorizes him to sign in a given transaction. That is very much edging into UPL.
I would not, because of that principle, decline to notarize. I would naturally insist that the signer follow protocol and indicate that he was executing under a POA. Beyond that I don't think it is my role to inquire if there are not other obvious indicators of fraud.
| Reply by John_NorCal on 7/23/08 11:57am
Msg #256439
I agree with you Hugh for the most part. If I were present I would not question a POA, however once the party relates a fact to me I feel that I would be duty bound not to continue with an illegal act. Other than that I would not at first "investigate" to see if the POA was valid, that isn't a notaries role.
| Reply by PA_Notary_II on 7/23/08 12:32pm
Msg #256442
I was sent on a mission a few yrs back by EFS that required a deed transfer with four family members in title. To my surprise, 2 of them were under age 10. The guy's 1st wife died and he had the home put in everyone's name to protect the kids. Then he remarried and applied for a refi. I refused to complete the act and told him to contact an attorney to get the siblings names off title. So someone thought that I'd just do it and turn a blind eye. My question is
was I practicing UPL by refusing to notarize or just voicing an opinion? (BTW I's absolutely certain the TC and broker knew this was a funky deal)
| Reply by sue_pa on 7/23/08 4:37pm
Msg #256485
I'm with Linda below in feeling that 99.9999999% of POAs cease upon the signer's death. As someone else said, I'd step aside when I 'know' something's wrong - no need to give a reason. Unlike CA, we don't have to notarize anything - we can refuse anything, anytime, for anyone for any or for no reason.
PA_Notary_II. How in the world did they think you'd be able to identify the 2 minors? They surely don't have id and we're not in CA with their funky totally unknown to us credible witnesses. Even if they had proof of id like a passport, I personally would never, ever notarize something for a minor, especially that young. Also, in PA, there is a WHOLE lot more involved with minors owning real estate. In order for the real estate to be sold or mortgaged, the court will appoint a guardian ad litum, usually a young attorney, to look out for their best interests. We had a client like that - we represented the child, for YEARS and YEARS. EVERY time her mother wanted to do something, like take out a small heloc for a new roof, back to court they went. The judge granted the request every time because she was continually improving the real estate, thus creating equity for the child.
| Reply by Hugh Nations Signing Agents of Austin on 7/23/08 12:51pm
Msg #256447
No one, notary or not, should ever participate in a transaction they know, or have a reasonable belief to be, unlawful. However, the simple fact that the principal on a POA is dead does not establish that a transaction is unlawful, nor should it necessarily engender suspicion that it is unlawful. Absent other, suspicious, circumstances, I would notarize. I would not even examine the POA to determine if it contains a "coupled with an interest" phrase. That would require me to make judgements about the validity of the contents of the POA, and that requires a lawyer.
Of course, a notary public is always, at least in Texas, free to decline a notarization if he feels uncomfortable with it. I just wouldn't feel uncomfortable with a transaction that, on its face, is apparently legal.
| Reply by Marlene/USNA on 7/23/08 1:21pm
Msg #256455
Hugh, you are a lawyer, are you not? Do you ever wear your lawyer hat over your notary hat?
I'm curious, that's all, if being a lawyer allows you more latitude in such situations than being only a notary would.
| Reply by Hugh Nations Signing Agents of Austin on 7/23/08 1:34pm
Msg #256457
I'm retired, and have never practiced in Texas, so the answer is no.
The thrust of the original post, though, was that NO POA survives the principal, and thus no notary should ever notarize a document in which a POA for a deceased principal is used. You don't have to be a lawyer to know that is is a misperception. At least, that is my understanding, and I think that probably obtains in every state except Louisiana, which is the only state that has not adopted the Uniform Power of Attorney Act, according to the web.
Of course, you don't have to have grown up in Louisiana, or next door as I did, to know that Louisiana does everything different. That works great for gumbo, girls and gambling, not so great for legal and/or other matters.
Like the Cajun who had a dog name Fido. Spelled it Phydeaux.
| Reply by Linda_H/FL on 7/23/08 1:50pm
Msg #256458
FL Statute 709.08(3)(b) re Durable POA
The attorney in fact may exercise the authority granted under a durable power of attorney until the principal dies, revokes the power, or is adjudicated totally or partially incapacitated by a court of competent jurisdiction, unless the court determines that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact.
Based on the above, in FL, I wouldn't be able to proceed with the notarization as the POA is invalid. (BTW, General POA's have the same stipulations, except they do not survive the principal's incapacity or incompetence, as does a Durable POA)
The original post, to me, sounds like there was some after-found property not included in the estate filings that they just wanted to move along without re-opening everything and exposing the asset to possible estate taxes - and further possible fights over the division of assets among family members. JMHO
| Reply by Linda_H/FL on 7/23/08 1:53pm
Msg #256460
Grr..forgot the ""...""
"The attorney in fact may .....is to remain exercisable by the attorney in fact. " is the quoted paragraph from the statute.
Sorry 'bout that..
| Reply by Marlene/USNA on 7/23/08 2:39pm
Msg #256467
Re: "unless the court determines. . ."
"unless the court determines that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact"
That's the part you wouldn't know about if they don't hand you a copy of the court order along with the POA.
| Reply by Linda_H/FL on 7/23/08 2:44pm
Msg #256468
Re: "unless the court determines. . ."
I think that refers to the court that declares him incapable or incompetent..then the court would determine what powers the AIF could retain.
The POA terminates if the principal is ..." adjudicated totally or partially incapacitated by a court of competent jurisdiction, unless the court determines that certain authority granted by the durable power of attorney is to remain exercisable by the attorney in fact. "
I still think, in FL, that the POA dies upon the death of the principal. In fact, from executing my own, I'm 99.9% sure that's what my attorney told me.
| Reply by Marlene/USNA on 7/24/08 9:44am
Msg #256556
Re: "unless the court determines. . ."
If it's relevant to your estate, check with your attorney again just to be sure.
I think that comma before "unless" would apply the clause to the whole schlemiel, but only a legal eagle would know.
| Reply by Hugh Nations Signing Agents of Austin on 7/23/08 5:17pm
Msg #256487
Re: FL Statute 709.08(3)(b) re Durable POA
My understanding of a "durable power of attorney" is one that survives the incompetency or incapacity of the principal. A durable power of attorney would be employed for healthcare matters, for example. Such a POA does not necessarily entail, and probably should not entail, any community of interests between the principal and his agent.
A power of attorney coupled with an interest is a different animal and, if my understanding is correct, would survive incompetency, incapacity and death. At least, that's what I remember as black-letter law when I was in law school. The difference is that in the first instance, the POA is acting solely in the interest of his principal. In the second, however, he is vested in the outcome and presumably is entitled to act in his own interest also. The death of the principal should not operate to force him to inflict an injury on himself by being precluded from exercising the POA.
This discussion of different types of POAs and the ramifications thereof is a good example of the reason that I think it unwise to go behind the curtain of a POA unless there are indicators that would cause any reasonable person to question the transaction in question.
Notaries are, in the final analysis, officers of the state. To deny an individual a service that the state >>requires,<< based solely on a layman's understanding of an area of the law that even lawyers have difficulty comprehending sometimes is, at rock bottom, unfair. If it looks like a duck and sounds like a duck to Joe Sixpak, then, yes, by all means, treat it like a duck -- in other words, if the proposed transaction smells, walk away. But to go way beyond that and try to determine whether it's a duck from its legal DNA is not a good approach, I think.
| Reply by Marlene/USNA on 7/24/08 9:49am
Msg #256558
Texas lawyer or not - good advice n/m
| Reply by BrendaTx on 7/24/08 10:04am
Msg #256560
Re: Texas lawyer or not - good advice
Hugh didn’t practice law in Texas as I understand it. Georgia, I believe.
A good answer for this particular notary in Texas is this: If I know the principal is dead I do not do the notarization of an AIF. This is what I know for me is correct.
| Reply by Hugh Nations Signing Agents of Austin on 7/24/08 11:40am
Msg #256589
Re: Texas lawyer or not - good advice
***A good answer for this particular notary in Texas is this: If I know the principal is dead I do not do the notarization of an AIF.***
A better answer for this particular notary in Texas is this: Absent an indication that something is amiss, I am going to to do the job that the state commissioned me to do.
As noted at length in the previous discussion, a deceased principal on a POA is not necessarily an indication that something is amiss. More is required.
| Reply by BrendaTx on 7/24/08 1:16pm
Msg #256604
Re: Texas lawyer or not - good advice
We will have to agree to disagree on this, Hugh.
For reasons I don't need to reveal here I feel 110% confident in this hypothetical decision I've made for myself. That's why I said "for this particular notary".
Everyone else needs to get their own advice from an attorney licensed in their own state where the notary holds their commission if they have a question in their mind about it. Or, better yet, call their SOS which will probably say, "you need to ask a member of the state bar about that one."
| Reply by Tonya Washington on 7/23/08 12:56pm
Msg #256449
In Louisiana, we in the legal field have a saying "Dead People Vote and Vote often, but they cannot own or transfer land."
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