Posted by Barb25 on 1/12/09 9:06am
Msg #274215

NotaryLaw.com - jurats by poa

I "lost" a signing the other night because I said I would not notarize the jurats signed by the aif. I had an appointment (about another matter) with my attorney the next day. He actually said that he notarizes the jurats in the case of poa as a matter of fact. I asked him to look up the statues and he said No. I guess you can't. I keep searching because like parts of the bible it certainly is not black and white in the case of jurats, in my opinion. (Maybe I am just dumb). Anyhow. I see that many have different opinions as to interpretation. Okay here is the latest I found and would love to hear your comments, if any. The following comes from NotaryLaw.com website. I found the site and question while googling "jurats with poa" (I think that's what I searched for). Here it is:

"Can you notarize a jurat for a person if they are not present but have given power of attorney to someone?
You can perform a jurat notarization on the signature of the person who has power of attorney. They sign their signature then "POA for ...." and you notarize their signature. You can never notarize a signature of someone who has not appeared before you."

I emailed "[e-mail address]" asking what substantiates this comment. I guess I would alway like to find it can be done. Business is slow enough without throwing it away if I don't have to. Aslo had anyone ever written to and gotten a direct answer from the SOS. By the way I am in Florida.

Reply by Susan Fischer on 1/12/09 9:47am
Msg #274216

In Oregon, a jurat is an oath or affirmation by a person that a statement is true. That person must appear before the notary.

I deal with this by attaching an ack to the docs that have a pre-printed jurat block if the signer is POA. Never had a problem. It's just logical that one person cannot give an oath for another, IMHO.

Reply by Linda_H/FL on 1/12/09 9:47am
Msg #274217

Msg #250202....Paul addressed this a bit

I haven't read the entire thread but this info may help - in the meantime I'd suggest, rather than go to Notary Law or the like you either research the FL statutes for this or take it up directly with the SOS...that's your best source for info to back up your stance. If you look on page 40 of the manual, you'll see that, in a representative capacity, there's no jurat wording - only an acknowledgment.

In answer to your question " Aslo had anyone ever written to and gotten a direct answer from the SOS. "....No...I called about a question some time back - it was regarding a general notarization and a quirky thing I had with ID - they called me back a week later and by then the deed was done!!

Good Luck..

Reply by Sylvia_FL on 1/12/09 9:49am
Msg #274219

If you notice the Governor's manual only gives samples of acknowledgment forms for POA's.

If you contact the SOS you will undoubtedly get a response saying to seek legal advice (seems to be their standard response)

Reply by Becca_FL on 1/12/09 11:40am
Msg #274240

Maybe we're going about asking the question all wrong?

What if we dumb down the question to the SOS office? What if I emailed asking for them to please provide me with a jurat for a person signing as AIF because I can't find one in the manual? They may think I'm an idiot, but maybe, just maybe, I would get an answer other than the canned "seek legal advice" answer. I'll give it a shot.

Reply by Linda_H/FL on 1/12/09 11:42am
Msg #274241

Pretty sad when you have to "dumb it down" for

your state regulatory agency...<G>

Reply by Barb25 on 1/12/09 5:33pm
Msg #274275

Re: Maybe we're going about asking the question all wrong?

I think you are on to something with that. Sounds SMART!

Reply by ReneeK_MI on 1/12/09 10:46am
Msg #274225

good luck searching ...

This is another little thorn in my side, and I've searched for years for either case law or statute - any statute - and find nothing. For every opinion (legal or otherwise) that an AIF can't swear for a principle, you'll find another (all other things being equal) opinion that they can.

Items I have found in all my digging - bear in mind I know that no single item means much, it's all just confounding & confusing collective, and I am NOT an atty (disclaimer disclaimer disclaimer):

* there are industries that use Federal & state forms using POA's requiring jurats

* The AIF has a legal fiduciary duty to the Principle, it would seem to follow that they would remain liable for whatever THEY do, under the authority of the POA & Principle

* Boiler-plate POA's include verbiage stating the Principle grants the AIF the authority to swear under oath on behalf of the Principle

* In theory, the AIF 'is' the Principle, under the POA; the signature of the AIF 'is' the signature of the Principle, for all intents & purposes. HOWEVER - inside the lines of a notarial cert, reality comes back into play and I will enter the name of the AIF, w/out any representation of capacity. Yes, I do take the oath of AIF's and I do complete jurats - based on what I have gathered in my own quest on this. As they say, YMMV.

* I do frequent work notarizing for an attorney, who regularly presents me with jurats and AIF's.

* When we held a POA for a relative and sold the house, there were jurats and sworn statements signed under the authority of the POA.

My final summary - It is my own little opinion that I am farther from UPL in my actions (as above) than to do anything differently. I wouldn't even venture to say "An AIF can not swear on behalf of the Principle" because to state that would demand an interpretation of the law, and of the authority of their POA, etc.

Reply by ReneeK_MI on 1/12/09 11:03am
Msg #274230

OOPS - replace with "principal" and t/h =) n/m

Reply by sue_pa on 1/12/09 10:54am
Msg #274227

I believe someone from one of the western states gave us THEIR state's statute that said they couldn't do it.

Other than that, I'm guessing it's not black and white anywhere else or someone would have found it. We've certainly discussed it enough for years.

A general POA grants, generally, authority to do anything and everything for their principal. Unless the document specifically excludes taking an oath or unless specifically excluded by statute, I fail to see why so many think it can't be done. An agent can appear in court proceedings on behalf of their principal (thinking civil litigation here) and they certainly take an oath before sitting in the witness chair.

All that said, again, unless specifically prohibited, who are we, as notaries, to determine what can and cannot be done with a POA. If the agent says the document grants them the right to take an oath ... swear away. We are not to read 10 pages and then legally interpret what it may or may not mean. What if the document specifically gives the right to take an oath ... who, as a notary public, is going to make the decision that the POA is flawed?

I'm guessing this will only ever be answered on an individual basis ... in front of a judge.

Reply by Linda_H/FL on 1/12/09 11:09am
Msg #274232

Re: NotaryLaw.com - jurats by poa...Sue

"What if the document specifically gives the right to take an oath ... who, as a notary public, is going to make the decision that the POA is flawed?"

You're really talking two different issues here - POA authority vs. notary authority.....The POA may grant the power to take an oath....but the SOS may not grant notaries the authority to administer an oath to an AIF and may stand on the fact that an AIF can't swear to facts for someone else - only for themselves.... notary law is what governs us in what we do, not the language in the documents we're presented with.

In Florida, we are not required to confirm that the signer has authority under the POA - their statement to us is sufficient - identify them and have them sign - then our manual provides an acknowledgment only to be used for AIF's - so I'd lean toward no jurats for them based on the Florida Governor's Manual. (Page 40 with ack form on page 30.)

JMHO

Reply by sue_pa on 1/12/09 11:26am
Msg #274233

Re: NotaryLaw.com - jurats by poa...Sue

I thought that's what I said - unless prohibited by statute. I believe, on these boards, it was stated years ago that it couldn't be done and so many feel it can't be done. As is so often, people don't do their own homework and "signing agent" methods prevail, which have no basis on reality. I've checked in PA and cannot find anything, either way. I'm guessing most states are that way or people would be posing statutes every time the question comes up. By the way, neither our SOS nor our state organization have ever given me an answer when asked this question.

I'm not going to read your FL Gov's Manual but if you're saying they say to substitute an ack for a jurat, what is the point of that when an ack and a jurat have entirely different purposes?

Reply by Linda_H/FL on 1/12/09 11:34am
Msg #274236

Re: NotaryLaw.com - jurats by poa...Sue

"I'm not going to read your FL Gov's Manual but if you're saying they say to substitute an ack for a jurat, what is the point of that when an ack and a jurat have entirely different purposes? "

I didn't say that....what I said was it provides only a sample ack in a rep capacity - not a sample jurat in that situation...

Reply by Linda_H/FL on 1/12/09 11:37am
Msg #274239

BTW...Sec 117.03 of FL Statutes states, in part

"The notary public may not take an acknowledgment of execution in lieu of an oath if an oath is required."

Reply by Kate/CA on 1/12/09 7:48pm
Msg #274302

I had a signing today with a POA. Attorney on line with us, I asked him before hand about the affidavit, his comments were, I'm giving an oath to the person who is named AIF, they are taking the oath, it is not for me to question. He was a very nice Attorney, he then went on to say, he couldn't believe some of these affidavits the lender makes up, they are not worth the paper they are written on, won't hold up in court any way. I had to laugh. I then told him, "yes, but I would like to have the money they paid whoever to write them up", he agreed.

Reply by Barbara A. Garafalo on 1/12/09 10:57am
Msg #274228

I agree with all of you. But But But wouldn't it be nice if the SOS (whatever State) made it as clear about jurats as acknowledgments. You CANNOT notarize for a person who does not appear before you very clear. For jurats: no sample jurat form for POA so therefore cannot be done. Not the same thing. As for seeking legal advice: the people who make these statues ask you to seek legal advice. What's with that? Why don't they know. My attorney didn't realize it couldn't be done. Says he's always done when required and I'm sure he's not the only one. I feel like I am search for the meaning of life or the lost continent of Atlantis.

I agree with ReneeK MI, wouldn't it be nice to get a straight answer. Actually my attorney looked it up in statutes and found the section and subsection which states you can't take an oath for another person. Still not written that clearly but he as an attorney took it that way. Me as a Notary could not have clearly understood the intent as well. Why doesn't the SOS just come out an say it. I will find the statute if you care to read it Floridians. However, I believe PAW has posted it before.

By the way NotaryLaw.com just sent me an email asking for it.

Thanks

Reply by ReneeK_MI on 1/12/09 11:06am
Msg #274231

I know the reason ...

the reason this and so many other topics demand interpretation of the law (i.e. lawyers) is because laws are written BY attorneys, and few laws ever cover something absolutely, thereby furthering the need for interpretation, more often than not on a case-by-case basis.

And I'm NOT saying that's bad or wrong, I'm just saying ...

Reply by Lee/AR on 1/12/09 12:21pm
Msg #274243

Adding to the general confusion...

What a coinkydink.... I just received an e-mail newsletter from the American Assoc. of Notaries (whoever they are) that says you can't do a Jurat with a POA, but then they go on to waffle that statement a bit by saying "Know your State's Laws". I can't post the exact content because it is copyrighted.

I imagine that the SOS won't say....because it could be in front of some judge right this minute who will make a decision--one way or another. And another judge tomorrow. Face it---we'll never know.

Pragmatic solution: Give 'em a loose Ack. If they have something 'notarized' in front of 'em... they are happy and think no further. (Apologies to those who DO care--just know that you are a rare breed.)

Reply by Barb25 on 1/12/09 5:36pm
Msg #274277

Re: Adding to the general confusion...

But FL law says you can use acknowledgment where oath is required..... That is clear.

Reply by Barb25 on 1/12/09 5:37pm
Msg #274278

Re: Adding to the general confusion...

Ooops I see that was already stated. aha!

Reply by Linda_H/FL on 1/12/09 6:50pm
Msg #274298

You mean "cannot"...right Barb? n/m

Reply by Barb25 on 1/12/09 8:22pm
Msg #274304

Re: You mean "cannot"...right Barb?

Oh My! Yes, I mean CANNOT. Thanks,

Reply by LynnNC on 1/12/09 12:23pm
Msg #274244

So, if you can't take the oath of the AIF...

...do you just leave the jurat blank and attach a post-it-note that you are unable to do so?
If the jurat is left blank, how does that affect the loan?

Reply by Lee/AR on 1/12/09 12:30pm
Msg #274245

See my post above. n/m

Reply by Susan Fischer on 1/12/09 2:42pm
Msg #274262

ORS 194.505(6) states : "A verification of oath/affirmation

is a statement by a person who asserts its truth and takes an oath about the assertion."

"An oath cannot be done on behalf of someone else, including a corporation." Oreon Handbook.

JUst verified with our SOS - and my handling of these situations is correct. Forgot to add this morning that when I know it is a POA situation (which is usually,) I ask prior to the app't which certificate they want in lieu of the jurat, since I can't choose one on my own.

Reply by Barb25 on 1/12/09 5:39pm
Msg #274280

Re: ORS 194.505(6) states : "A verification of oath/affirmation

I tried that one the other day. Answer from TC was: Lender says we need to find another notary. Obviously they did.

Reply by Susan Fischer on 1/12/09 6:44pm
Msg #274296

Good thing you're not in Oregon. n/m

Reply by Lee/AR on 1/12/09 6:32pm
Msg #274293

Re: ORS 194.505(6) states : "A verification of oath/affirmation

Process of elimination: There are 2 certs. Jurat or Ack. If you aren't allowed to do a Jurat/POA... that leaves 2 choices: 1 or none. However, you've been told they want it notarized, leaving but one choice. End of story.