Posted by Barb25 on 1/21/09 1:15pm
Msg #275204

Latest from notarylaw.com on Jurats with POA

I thought this was dead and buried with Notarylaw.com but I received this email today. I think this puts it back to square one. Maybe I am missing something. Me thinks we are talking about acknowledgments here. Why is it so hard for the SOS to make things clear and why we they tell notaries to contact an attorney?

Barbara,

I apologize we cannot give you the answer you are looking for. Many times, statutes are bare-boned and leave much to be interpreted. Like you mentioned many statutes are conflicting with each other and it can be hard to get a straight answer. The important thing to keep in mind is you are a Notary Public, not an attorney. What you are required to know is in the Notary Public section. I have been in contact with your Notary Education Coordinator in the Office of the Governor, Notary Section and even she mentioned their office only handles matters regarding Chapter 117, which is the Florida notary law and that you may want to consult with an attorney to determine any legal opinions.

She also referenced the Governor's Reference Manual that I mentioned in an earlier email.
For a Person Signing with Power of Attorney

Situation: John Doe presents a document to be signed by Nancy Smith. John Doe state that he has power of attorney for Nancy Smith. John Doe signs the document in one of two ways:

(1) John Doe as attorney-in-fact for Nancy Smith

(2) Nancy Smith by John Doe, attorney-in-fact


The first way is the preferred method.

§ It is not the notary‘s responsibility to ensure that the signer has power of attorney. The person states he has that authority and indicates this fact when he signs - just accept his word.

Note: If you are notarizing in connection with your employment, you may need to require a copy of the POA for your employer‘s files.

§ Note the capacity of the signer in the notarial certificate. Use a notarial certificate in substantially the same form as the one on page 30 for an acknowledgment in a representative capacity.

Please remember that each state has its own set of laws governing notaries so when one thing is true in one state, it may not be true in another.

Have a wonderful day,

Customer Service,
Notary Law Institute
PO Box 1932
Orem, UT 84057
(P) 800-722-8708
(F) 801-296-6154

Reply by MichiganAl on 1/21/09 2:10pm
Msg #275209

I subscribe to a list serve for various Secretary of State offices. The question came up a few weeks ago (they're obviously reading Notary Rotary). They also seemed pretty baffled and most of them didn't even understand the difference between an acknowledgment and a jurat (heavy sigh). Here's what I get out of the response they sent you:

"The important thing to keep in mind is you are a Notary Public, not an attorney. What you are required to know is in the Notary Public section."

Too many notaries who think they're lawyers or doctors. It's just not our call to decide you can't do a jurat for a p.o.a.

Reply by Leon_CO on 1/21/09 3:00pm
Msg #275213

Colorado notary says this:

>> A jurat requires the principal to sign the document in the Notary's presence. The acknowledgement requires the principal merely to acknowledge that the signature on the document is his or her own and made willingly.

A jurat requires the principal to take an oath or affirmation from the Notary. An acknowledgement requires neither. <<

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For a jurat, the principal signer must appear before the notary, and that person must take an oath or affirmation.

A person with Power of Attorney is NOT the principal signer, and therefore cannot take an oath for that person.

This is not just my interpretation. This is how it was explained to me by the person at the Colorado Secretary of State notary division.


P.S. Of course, this is for Colorado. You'll have to check your own state's notary laws.

Reply by Leon_CO on 1/21/09 3:07pm
Msg #275214

That first line should read: 'Colorado notary law'

Reply by Barb25 on 1/21/09 3:34pm
Msg #275216

I hear all of you the point of this once again "post" is that the so-called and I think self-proclaimed authority "Notarylaw.com" argues this point... that is, oath by aif is valid. Perhaps you can write to them. I agree with you.

Reply by Leon_CO on 1/21/09 3:40pm
Msg #275217

>> Perhaps you can write to them. I agree with you. <<
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Barb, I will not write to them because I have enough to go on from the Colorado SOS.

There is something else that Colorado notary law says about jurats that is very important:

>> ... the purpose of a jurat is to compel truthfulness by appealing to the signer's concience and fear of criminal penalties for perjury.

In executing a jurat, a Notary certifies:

2) The signer was positively identified by the Notary through personal knowledge or other satisfactory evidence (i.e. identification card).

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How do you positively identify the principal signer ... if they are not present?

Reply by SharonMN on 1/21/09 4:02pm
Msg #275220

Well, you can take an oath in your capacity as officer of a company. Why couldn't you take an oath in your capacity as POA for someone?

Provided your notary certificate is clear on the matter of who took the oath (John Jones as POA for Mary Smith), the question of whether it is legal/appropriate for John to swear on Mary's behalf might indeed be an attorney question.

One can argue that the person who has POA doesn't know enough to swear to certain statements on behalf of the principal - but in that case, the person who has POA should simply refuse to do so rather than commit perjury. For example, if John has been handling Mary's business affairs since she's been in a coma for the last year, he could probably swear that no loans have been taken out on her house in the last 60 days. However, if asked to swear to the truth of something that happened to Mary in her childhood, John should say he doesn't have sufficient knowledge to do so.

Reply by GA/Atty on 1/21/09 4:05pm
Msg #275222

Corporations do not take oaths, only individuals do.

Even in one's capacity as an officer of a corporation, an affidavit is made only to facts known to that person as an individual.

Reply by GA/Atty on 1/21/09 4:02pm
Msg #275221

Leon is correct and I think it is probably the same in every

state.

A power of attorney cannot be used to swear under oath to the truthfulness of a fact. It just doesn't make sense that one person could do that on behalf of another.

That would be essentially the same thing as a witness in court testifying with a power of attorney. There would be a whole industry of professional witnesses who would testify on behalf of unwilling crime victims, etc.....

That is not to say that lots of loan officers, settlement companies etc. might have folks sign affidavits with POA's all the time. They just do not understand the issue.

From a notary's point of view (or even an attorney's), it's a no harm, no foul situation. The affidavits are meaningless when signed with a POA, but that's the lender's problem, not ours.

Reply by Leon_CO on 1/21/09 4:08pm
Msg #275223

Re: Leon is correct and I think it is probably the same in every

>> That would be essentially the same thing as a witness in court testifying with a power of attorney. <<
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That is precisely the same explanation that the NNA gave when I asked them. But I still thought it best to go to my SOS.

Reply by Susan Fischer on 1/22/09 2:43am
Msg #275275

"That would be essentially the same thing as a witness in

court testifying with a power of attorney. "

That's usually inadmissable hearsay, no?

Reply by Leon_CO on 1/22/09 10:27am
Msg #275289

Re: "That would be essentially the same thing as a witness in

>> That's usually inadmissable hearsay, no? <<
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You're right.

But I think you read the line out of context. See Ed's (GA/Atty) complete post just above mine. From his post:

>> That would be essentially the same thing as a witness in court testifying with a power of attorney. <<

That is the point that he was making.

Reply by LKT/CA on 1/21/09 4:59pm
Msg #275233

Re: Leon is correct and I think it is probably the same in every

<<<<A power of attorney cannot be used to swear under oath to the truthfulness of a fact. It just doesn't make sense that one person could do that on behalf of another.>>>>

Why? I have a POA for my 79 year old dad, he has a silver, two door car....I can swear to the truthfulness of that fact....because I sold him that car and I know for a fact he has still has it.

There's a misassumption that the AIF does not know the facts to which he would be required to take an oath to and that's not necessarily true. In CA, we cannot use capacity in our notarial certificates. To me, an AIF **becomes** the principal by the powers granted him/he by the principal, hence the name "POWER of Attorney" and if the AIF can obligate and sign away the life of the principal, I don't see why the AIF cannot take an oath on behalf of the principal - if he/she knows the truthfulness of facts he/she would be required to swear to.

Also, the AIF can investigate and find the truth of a statement and swear to it. For example, if John is Mary's AIF, John did not have to witness events in Mary's past, he just has to prove them true with evidence. So if Mary ate crayons when she was 2, John can ask Mary's mother and other relatives if that's true and the mother may even have photos of Mary at 2, eating crayons. So, with the POA, John could swear on oath that Mary ate crayons at age 2, even though he's only known Mary 4 years.

This great dialogue on the subject, I don't think the issue is belabored and just wanted to throw in my 2 cents with a different point of view as some SOS's do not specifically address the issue.

Reply by GA/Atty on 1/21/09 5:06pm
Msg #275236

You can swear to the fact, but not on his behalf. n/m

Reply by LKT/CA on 1/21/09 6:45pm
Msg #275245

Re: You can swear to the fact, but not on his behalf.

Do you have a statute, code of some sort I can reference for my own enlightment and education?

Reply by GA/Atty on 1/21/09 8:02pm
Msg #275248

No, I don't. I don't think you would find any statute on it.

Maybe in a thorough treatise about oaths or powers of attorney, or perhaps the issue is addressed in a published opinion of an appellate court somewhere.

Reply by MichiganAl on 1/21/09 6:45pm
Msg #275246

That's how I've always seen it as well

My notarial cert. states the name of the signer only, not who he's signing for. So as far as I'm concerned, he's swearing to his or her knowledge of the facts. Maybe worthless, but that's not my issue.

Great stuff Ed. Glad to have input from a real attorney.

Reply by MichiganAl on 1/21/09 6:37pm
Msg #275243

That's the point exactly

"From a notary's point of view it's a no harm, no foul situation. The affidavits are meaningless when signed with a POA, BUT THAT'S THE LENDERS PROBLEM, NOT OURS."

IT'S NOT OUR CALL AS A NOTARY TO DECIDE OR INTERPRET. Just do our jobs and stop playing lawyer.

Reply by Les_CO on 1/21/09 4:12pm
Msg #275224

I agree with Leon...However (I probably should not post this)
When doing AIF signings I usually go with the : “Mary Doe by John Doe her Attorney in Fact.” or “Mary Doe by John Doe the Attorney in Fact for Mary Doe.” wording on acknowledgements. Now if Title ‘insists’ on using a jurat. I simply use this wording : SWORN TO BY: “ John Doe ....Attorney in Fact for Mary Doe” I have the signer sign his name write this out on the signature line. I then sign and stamp it. I don’t think anyone at Title ever reads these, They just see all docs notarized, and send it on. If John Doe wants to swear to the truthfulness, or the correctness of the document who am I to question? And yeah, the AIF is there, and ID'd by me. As to his capacity as AIF I seldom see the POA, and really don't care.

Reply by Barb25 on 1/21/09 4:26pm
Msg #275225

This original post above is the last in the answers from Notarylaw.com. "From the Florida Statute Section 709.08. See below subsection 7(b)2.

Attorney in fact may not make an affidavit as the the personal knowledge of the principal."

Notarylaw.com says basically that this is not in the Notary Handbook for Florida so it is not our concern.

I would think then if you are a notary you may be able to kill someone as it does not say in the Florida Notary Handbook that you cannot do so. In my mind that is the same logic used in jurats by poa. (Police may have a different view.) I am so worn out with this to be sure. With me it started when a TC pulled a job from me when the lender said if I would not have the jurats completed by aifs. I had hoped to find either way.... but something substantial. I had hoped Notarylaw.com would give me something solid (on either position). It is my feeling right now that they have no more info that the rest of us. The words Notary Law is misleading to say the least.

Reply by Leon_CO on 1/21/09 4:32pm
Msg #275227

>> I would think then if you are a notary you may be able to kill someone ... <<

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In Colorado we can do that.

Everywhere I look in my notary law handbook I see the word "execute".

Reply by Les_CO on 1/21/09 4:45pm
Msg #275229

I definitely agree with Leon on this subject!!

Reply by Barb25 on 1/23/09 10:54am
Msg #275377

I haven't been on since the day before yesterday and just read your response to my comment. You made me lol. I may move to Colorado because of this. Barb

Reply by Les_CO on 1/21/09 4:42pm
Msg #275228

I can’t think of something more worthless than a “Signature/ Name Affidavit” signed by a person using a POA. I believe almost all the affidavits / jurats signed by a POA carry the same weight. (JMO) I just hate to get into a spitting contest with Title, and usually the borrower wants the loan, so why not do what we can to oblige. I’ve be at this a long time, I’ve done many POA signings, I’ve never had one come back. And really after the poor AIF trying to sign the borrowers name, then his name then the ‘verbiage’ say 56 times, and trying to squeeze it into an inch space who can read it anyway?

Reply by CopperheadVA on 1/21/09 4:59pm
Msg #275234

I'm with Les_CO on this one. My state of VA does not address the issue of AIF's and jurats. Of course, I would prefer that all certificates for AIF's be acks instead of jurats, but since I am not allowed to choose the notarial certificate, I go with what the requester (lender or TC) has on their docs. If an AIF said he/she could not swear to the contents, then I would contact the hiring entity and go from there.

With all my notarial certificates, whether AIF or not, I always indicate the person's name who's signature I am notarizing. If it's an AIF then I make sure that I indicate that in the notarial certificate so it's perfectly clear who's signature I am notarizing as AIF on behalf of _______. Try doing that on a Provident loan that does not allow cross-outs!

Reply by Linda_H/FL on 1/21/09 8:06pm
Msg #275250

You guys are all gonna hate me for this...BUT

putting the statutes aside for the moment and not playing attorney...Notary Law and Notary Manual only...

Our manual, and FL Notary Statutes, provide us with sample certificates for situations, both individual and representative capacity. Our manual and our statutes also say that in the case of an AIF signing, we are to complete a certificate in "substantially the same form" as the acknowledgment in a representative capacity (page 40). There is NO sample of a jurat in a representative capacity (page 30)....

So, IMO, in order to follow proper Florida Notarial Law and Procedure, we MUST use an acknowledgment in a representative capacity....and since our manual says this, if we go ahead and use a jurat "because they told us to", and it's the wrong certificate (based on our manual and notary statute) does that not open us up to a claim against our E&O policy and our bond for notarial error?? Because we really ARE attaching the incorrect cert to the document.

Told ya you were gonna hate me...<G>

Reply by Linda_H/FL on 1/21/09 8:54pm
Msg #275253

Sorry, s/b "putting the POA statutes aside... n/m