Posted by Linda Shepperd on 10/21/09 8:29pm
Msg #308153
Medical Directive
Good evening all, a quick question wanted to make sure. Can a notary act as a witness on a Medical Directive and then notarize the document?
Thank you
| Reply by John Schenk on 10/21/09 8:43pm
Msg #308155
You may notarize it, but you can't act as both a notary and a witness, if that's what your question is? You can't act as both the notary and a witness...notary notarizes and signs as a witness too? That's like a split personality. LOL You can either witness it, or notarize it, but you can't be a witness and notarize it also.
JJ
| Reply by Linda_H/FL on 10/21/09 8:46pm
Msg #308156
Witness AND Notarize may be a state-specific
issue - we can witness AND notarize here - think they can in CA too (OP's location) - unless it's a self-proving affidavit, which requires two other witnesses besides the notary.
MHO
| Reply by Linda_H/FL on 10/21/09 8:47pm
Msg #308157
Shoudl add here...
also providing she's not named in the document.
One of these days I'm going to finish my thoughts in one post!!
| Reply by John Schenk on 10/21/09 9:06pm
Msg #308160
Re: Shoudl add here...
No, you're never going to finish all your thoughts in one post. Why would you now think that? LOL J/K Thank you for the info Linda.
JJ
| Reply by Linda_H/FL on 10/21/09 9:07pm
Msg #308161
HEY!!!...:P...:) n/m
| Reply by Sylvia_FL on 10/21/09 9:09pm
Msg #308163
Re: Shoudl add here...
"One of these days I'm going to finish my thoughts in one post"
And deprive us of the pleasure of reading two posts from you instead of one??? LOL
| Reply by John Schenk on 10/21/09 9:14pm
Msg #308164
Re: Shoudl add here...
No...deprive US from reading two posts from YOU instead of ONE. ROFLMAO
JJ ;-)
| Reply by Sylvia_FL on 10/21/09 9:16pm
Msg #308165
Re: Shoudl add here...
John
have I ever told you how dapper you look in your profile pic?
| Reply by John Schenk on 10/21/09 9:22pm
Msg #308166
Re: Shoudl add here...
No, Honey...you love me now? LMAO Thank you for the compliment though!
JJ
http://www.legis.state.tx.us/tlodocs/81R/analysis/pdf/HB02585H.pdf
| Reply by Sylvia_FL on 10/21/09 9:33pm
Msg #308168
Re: Shoudl add here...
"No, Honey...you love me now"
John, I love just about everyone on NotRot
But, Bruce is the love of my life and has been for the past 40 years
| Reply by John Schenk on 10/21/09 10:02pm
Msg #308171
Re: Shoudl add here...
I'm sure Bruce is a lucky man! :-)
Have a good night. Hope Bruce gets lucky tonight. LOL
It's amazing to me the differences in the laws of the states, and Louisiana just isn't in this picture at all as they do their own thing there under French law.
The legislature, at some point in time, SHOULD make some uniformity in notary practices, at least on mortgage loans. I think DNR situations should be left to the states, and it is. That's just another thing that falls under the state's sovreignity to make its own laws, as notary laws also fall under now. Should be some uniformity throughout all the states for mortgage loan closings for notaries. It may happen one day, but until it does we all continue to work under the laws of our respective states. Some are good, and some are bad. Doesn't matter what they are, we have to comply with them. I do hope for a more uniform set of laws for notaries to work under one day. It would cut out a lot of posts on the board. LOL
JJ
| Reply by JanetLA on 10/22/09 10:19am
Msg #308235
It would be bad for Louisiana if the laws were uniform
since we can prepare and notarize documents. How would that change or limit our authority? In other states you have similar authority and powers, but making it uniform would limit the Louisiana notary ability to earn the money available now.... We can prepare mortgages without an attorney, and do any instrument in writing for our customers... If the law were the same for all pertaining to mortgages, that would mess us up... We can have a customer tell us their situation and we can recommend and prepare any of the documents necessary for that customer. This includes mortgages, wills, affidavits, leases, contracts, sales, and more... I do know how different we are, but I like it!!
| Reply by PAW on 10/22/09 7:24am
Msg #308195
Re: Shoudl add here... Bruce who?
Bruce Wayne?
| Reply by Sylvia_FL on 10/22/09 7:55am
Msg #308200
Re: Should add here... Bruce who?
yes, that is my "Batman"
For those of you who don't know Bruce's middle name is Wayne. And he really was named after Batman! he was born in Jamaica while his father was serving in the military. His mother had believed she was expecting a little girl and had no boy names picked out. He was a few days old and the registrar was there at the hospital to register the birth and his mother still hadn't got a name for the baby. So she calls his father at work and asks what they should call him. His father happened to be reading a Batman comic at the time, and said "What about Bruce Wayne" So, that is how my husband got his name.
| Reply by John/CT on 10/22/09 9:23am
Msg #308222
Re: Bruce ...?
and, where is Robin?
| Reply by Sylvia_FL on 10/22/09 10:22am
Msg #308238
Re: Bruce ...?
John
I told Bruce when I met him that it was either Robin or me
| Reply by trnsa_IL on 10/22/09 11:21am
Msg #308250
Re: Should add here... Bruce who?
Your husband's story is very interesting Sylvia!
My 19 year old, Andrew, who is a huge Batman fan and is affectionately known to all of his friends as "Batman," informed us that in keeping with the family tradition of incorporating one of the father's or grandfather's given names into the first born son's name he intends to name his son "Bruce Wayne" since his father's middle name is Wayne.
I think he may have to pass that through another female for approval when the time comes, not just mom.
Thanks for sharing Bruce's story; I know Andrew will be intrigued! His cell phone even has the, yep, you guessed it, Batman theme song as its ring tone, and I sometimes answer his phone ( only when he cannot answer it himself), "Bat Cave" just to get a laugh.
Tonya
| Reply by Sylvia_FL on 10/22/09 11:54am
Msg #308255
Re: Should add here... Bruce who?
"first born son's name he intends to name his son "Bruce Wayne" since his father's middle name is Wayne."
he would love our son's name! David is a family name on both sides, so we had decided to name our first (and only) son, David. I wanted him to have Bruce's name too, so I was supposed to register him as David Bruce Wayne Mease - however I was a John Wayne fan - so ended up registering him as David Bruce John Wayne Mease!
(I also liked Petticoat Junction, so our youngest daughter is Billie-Jo)
| Reply by John Schenk on 10/21/09 8:57pm
Msg #308159
Re: Witness AND Notarize may be a state-specific
Then I am out of line as I couldn't imagine how any state would allow 1 person to be the notary and ALSO a witness. That would allow a split personality, wouldn't it? States are different, and my apology if I was wrong. Personally, even if Texas allowed it, which it doesn't, I wouldn't act as both the notary and as a witness. JMLO
JJ
| Reply by Sylvia_FL on 10/21/09 9:08pm
Msg #308162
Re: Witness AND Notarize may be a state-specific
Linda is correct.
And if you look at the witness requirements for mortgages/deeds in states that need a witness you can see notaries are allowed to also act as witnesses:
Thanks to PAW for the following information:
State Witness Requirements (as determined by PROPERTY LOCATION) 2009
CT - 2 witnesses on deeds of conveyance, one can be the notary. - See notes below.
FL - 2 witnesses on deeds of conveyance, one may be the notary (F.S.A 695.03 & 689.01). - See notes below.
GA - 2 witnesses on both deeds of conveyance and security instruments, one may be the notary (GA Code - Title 44 § 44-14-33).
LA - 2 witnesses on both deeds of conveyance and security instruments, CANNOT be the notary.
SC - 2 witnesses on both deeds of conveyance and security instruments, one may be the notary.
NOTES:
CT - Mortgages DO NOT require witnesses, though it is recommended. DEEDS (QuitClaim, Warranty, etc.) do.
FL - Mortgages DO NOT require witnesses, DEEDS (QuitClaim, Warranty, etc.) do.
NOTE: Dixie County requires two witnesses (one can be the notary) on Deeds and Mortgages. Per the Clerk of the Court, Dana Johnson.
MI - No longer requires witnesses. MCLA 565.201 - Requirements for recording with register of deeds - amended April 1, 1997
MN - Witnesses are not required on conveyances or mortgages executed in Minnesota. Minnesota Statute Section 386.39.
NC - Witnesses are not required on conveyance documents (deeds) nor security instruments (DOT). HOWEVER, the notary may not act as a witness if witnesses are used or required on any document. (Source: NC SOS website FAQ item #13. Link information provide by Lynn Lowry)
OH - On November 2, 2001, Governor Taft signed into law Substitute House Bill (Sub. H. B.) 279, which repealed part of Ohio Revised Code (O.R.C.) Section 5301.01 requiring two witnesses to attest, sign and subscribe their names to documentation associated with real estate transactions (i.e., deeds, leases, mortgages, land contracts).
RI - Per Stewart Underwriting Manual, witnesses are not required on conveyance documents (deeds) nor mortgages.
TX - Per Stewart Underwriting Manual, witnesses are not required on conveyances or mortgages executed in Texas, unless the person signing does so by making a mark instead of signing.
VT - Witnesses are no longer required. 27 V.S.A. 341 Amended 2004
Lenders may require witnesses, even though there is no state requirement.
| Reply by John_NorCal on 10/21/09 9:53pm
Msg #308169
All the ones I've done have had 2 persons to witness and
notarize. Not sure if that is a CA requirement, just my experience.
| Reply by Roger_OH on 10/21/09 10:22pm
Msg #308175
Re: Witness AND Notarize may be a state-specific
Witnessing and notarizing are two separate functions on the document.
The witness signature(s) isn't notarized, only the document signer; so in a number of states it's OK to do both.
| Reply by PAW on 10/22/09 7:23am
Msg #308194
Different criteria
Notarization of the signature identifies the signer and ensures that the signer is signing under their own free will. (Assuming it is an acknowledgment on the document.)
The witness signatures attest that the principal (signer) actually signed the document in their presence.
Two completely different and separate purposes. Therefore, the notary can usually act in both capacities, i.e., notary and witness.
Take for example a document that needs an acknowledgment of execution. The document is signed on October 1st and witnessed by John Doe and James Smith. On October 5th, the signer takes the document (complete with his signature and the signatures of the two witnesses) to his friendly notary, James Smith. Can James Smith take the acknowledgment? Of course he can (except in states where it is prohibited), because the notarization is separate and distinct in practice and purpose.
| Reply by JanetK_CA on 10/22/09 3:02pm
Msg #308280
That makes sense
Didn't think about the fact that with an acknowledgment, the signer only has to acknowledge that they are the one who signed the doc and we don't have to see them sign it. Thanks for clarifying.
| Reply by Linda Shepperd on 10/22/09 11:11am
Msg #308248
Re: Witness AND Notarize may be a state-specific
Thank you so much for your responses!
| Reply by Marian_in_CA on 10/21/09 10:21pm
Msg #308174
In CA, it's one or the other...
Advanced health care directives in California require either two witnesses OR a notary. If the person is in skilled nursing at the time, a Patient Advocate or Ombudsman must also witness -- with or without a notary. Now, that's skilled nursing and NOT assisted living. Those are two very different types of facilities in California. Skilled nursing is medical, assisted living is not. If it has a license as an RCFE, it's assisted living. The vast majority of retirement and board and care homes are RCFEs.
Legal Code:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=04001-05000&file=4700-4701
The link above shows all of the required elements in a AHD for California. Other than what is listed in the probate code, there is no specific format or form that is required, though there are TONS of different ones out there.
| Reply by Roger_OH on 10/21/09 10:23pm
Msg #308176
Re: Same here in OH, it's one or the other... n/m
| Reply by JanetK_CA on 10/22/09 2:58am
Msg #308185
That's a different issue
I think what you're quoting has more to do with how the document is executed, rather than who is allowed to fulfill which function. I don't see anything here that excludes the notary from serving both functions. Also, I've seen a good number of attorney-prepared AHDs that were notarized as well as witnessed. When I do these in a signer's home, I have the other party sign as the first witness, including the extra section you quoted in your post and I sign as the second witness.
BTW, that reminds me that I was incorrect in my post below in that the remote attorney only has his clients find one witness, not two, and I act as the second one all the time. I was confusing that with a different estate planning attorney that I don't work for very often. He just has me come in to notarize for him, then he and his secretary do the witnessing. So I seriously doubt if it's a problem. However, if given instructions to the contrary, I think we should always follow the instructions, naturally.
| Reply by Marian_in_CA on 10/22/09 3:09am
Msg #308187
Re: That's a different issue
That makes sense... although it kind of defeats the entire purpose of the witness, doesn't it? From the code it states, "The form must be signed by two qualified witnesses or acknowledged
before a notary public."
If you have a notary come in, you don't need witnesses. Essentially, as notaries we fulfill the role of both witnesses.
That said, I have been asked to notarize, by attorneys, the signer's signature as well as the witnesses. It's not required, but it doesn't hurt, either. In fact, about a month ago I was at a skilled nursing facility and I was asked to notarize for the signer, two witnesses AND the Ombudsman.... all of whom were present. From what I understand, there was a really contentious family situation and the person's attorney's wanted as many impartial people as they could. It made sense to me.
What I'm saying is that, for CA, the minimum required is either two witnesses or a notary... it can always be more.
I just don't see the point of notarizing and then signing as a witness. Personally, I'd only sign one time -- either as a witness or as a notary, but not both. But that's just me.
| Reply by JanetK_CA on 10/22/09 3:22am
Msg #308189
Re: That's a different issue
I think you have a good point -- we're basically duplicating our witnessing by doing both. I don't know if it's grandstanding by some attorneys to impress their clients or if they actually feel that it makes a difference. Personally, it doesn't make any difference to me.
In an estate plan, we'll typically witness (without notarizing) the Will, but I nearly always see the AHD be notarized and witnessed. I'd never really thought about it before. Maybe there is some sort of functional legal distinction between the two.
As for the comment "it can always be more", you are so very right. For one of my clients, the attorney was doing an estate plan for someone who was related to him by marriage. As a precaution to be able to prove that it was all above board and freely decided by the signer, he arranged to have the entire process videotaped from start to finish so that it couldn't be contested! It was very interesting.
| Reply by PAW on 10/22/09 7:29am
Msg #308196
Re: That's a different issue
Many states consider the notary taking an acknowledgment to be the "official witness" because the notarial act positively identifies the signer. However, in my post above, the "unofficial witness" accomplishes a different function, especially in a document that is executed but not notarized. The unofficial witness makes no claims as to the identity of the signer, only that the document was executed in their presence.
| Reply by JanetK_CA on 10/22/09 2:46am
Msg #308184
I've done it many times. I get work from several estate planning attorneys from time to time and they often have me notarize AND act as one of the witnesses. With one attorney that I've done the most work for, he signs as the first witness and I sign as the second one, in addition to notarizing the documents that require it. Another attorney client has me notarize, then has both of us PLUS a third person witness. For another attorney, who is in a different city and not present at the signings, I just notarize and the clients are instructed to find two other witnesses.
Seems to be a matter of personal preference (I DO think that this issue is very state-specific, however), but I've never heard of it being a problem here in California. Maybe it just OK if the attorney is present?? But I can't think of why that would be. Or the fact that these are attorney prepared documents may have something to do with it, I suppose, but I've never heard anything to that affect. [Disclaimer: I haven't yet read the link that Marian posted below, but I'm about to.]
| Reply by CF on 10/22/09 8:09am
Msg #308203
Witness and Notarize is state specific. In Michigan for POA's and Medical Directives most attorney's counsel their clients to have 2 witness'. All of the ones that I have notarized....I have not acted as a witness. A
| Reply by CF on 10/22/09 8:10am
Msg #308204
Hit enter w/o spell checking- sorry!!! n/m
| Reply by Angiea on 10/22/09 2:09pm
Msg #308270
no a notary can not be a witness and a notary, atleast in pennsylvania i know they cant.
| Reply by PAW on 10/22/09 2:37pm
Msg #308277
Please see PAN's answer
http://blog.notary.org/2008/09/notary-witness-or-both/
PAN states that notaries can be a witness as well as the notary. However, there are exclusions, as there are in other states. Such as: if the witness signatures are notarized, the notary cannot act as a witness, since the notary would be notarizing their own signature.
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