Posted by mwm143 on 1/6/10 12:34pm
Msg #316928

Power of Attorney

After a conversation with a representative of the SOS regarding a specific POA, I was advised that as a notary I should be very careful when dealing with POA signings. The rep strongly suggested that attorneys should be involved due to the broad nature of POAs and what transactions are allowed, etc. for proper interpretation. I'm somewhat inclined to agree after giving the matter some thought.

My questions to fellow notaries: Assuming we all inspect and review POAs for proper signatures do you also review them to verify that the transaction you are notarizing is specifically addressed in the POA?

I'm sure that only the folks who do will respond but hopefully those who don't will take notice.

Reply by Roger_OH on 1/6/10 12:44pm
Msg #316932

Assuming you're referring to loan signings with a POA, it's not our place to determine if a POA is proper or legal, etc. We sign the borrowers as an attorney-in-fact per TC instructions.

The TC will almost always have reviewed and approved the POA before the signing is scheduled. It's their responsibility to ensure it meets their criteria. I would never do a POA signing without TC approval.

Reply by mwm143 on 1/6/10 12:51pm
Msg #316937

What prompted me to contact the SOS in the first place was that the TC had in fact provided incorrect instructions on signing the documents. I'm certain a rookie or two would not know better.

What do you think our liability would be if we notarize a DOT improperly using a POA, it gets recorded, the loan funds and 3 months later there's a dispute?

Reply by Roger_OH on 1/6/10 1:04pm
Msg #316942

Our liability extends to notarial errors, not legal judgments.

You don't notarize the DOT, you notarize the signatures on it, period. Notarization doesn't mak a document "legal"; it simply means that the signers have appeared, been ID'd, given oaths when required, and the other essental elements of a proper notarization have been fulfilled per state laws.

One caveat - a person signing as an attorney-in-fact cannot swear to the facts of a document on behalf of the person he/she is signing for, only for themselves.

Reply by LKT/CA on 1/6/10 5:14pm
Msg #317018

<<<One caveat - a person signing as an attorney-in-fact cannot swear to the facts of a document on behalf of the person he/she is signing for, only for themselves.>>>

I wonder if that's true for spouses since a husband and wife are ONE in the eyes of the law and the IRS....

Reply by PAW on 1/6/10 7:59pm
Msg #317032

Yes, Lisa, it's true even for spouses. Husband and wife are not considered ONE IN THE SAME person, they are only considered to be of one entity.

Reply by MW/VA on 1/6/10 3:59pm
Msg #317006

I agree. We only do POA signings that have been approved by the lender & tc. We have no liability for that decision--it's not our's to make.

Reply by Linda_H/FL on 1/6/10 12:46pm
Msg #316934

In the case of loan signings - title and/or lender has already reviewed the POA and made the determination that the signer has the proper authority. My only concern is that the person named in the docs is the person sitting in front of me - and that's established not by a review of the POA but by seeing their ID...IMO our determining the specific authority can border on UPL.

Our notary regulations do not require us to see the POA.

Reply by Jim/AL on 1/6/10 12:54pm
Msg #316938

Agree, notary regulations do not require us to see the POA

You are over thinking your role IMO and so is the SOS rep. We are not lawyers and therefore cannot determine legality of POA.

KISS

Reply by mwm143 on 1/6/10 1:02pm
Msg #316941

Re: Agree, notary regulations do not require us to see the POA

TC wanted the Mr. Brwr to sign the docs for his incapacitated wife to match title. The POA that Mrs. Brwr signed had a different middle name. If I had not seen the POA those documents would have been improperly notarized. The names have to match exactly.

Reply by Linda_H/FL on 1/6/10 1:07pm
Msg #316944

Names on a POA do not change vesting on title

Borrowers have to sign docs as they hold title or as stated on the docs (or through POA) - as long as you can identify the signer in front of you I don't see how the notarization is improper. Do you mean their ID did not match their names on title? Maybe I'm missing something here.

Reply by Robert/FL on 1/6/10 1:10pm
Msg #316946

I am fortunate enough that in Florida our manual has specifically advised us that we need not see a copy of the POA; we only have to take the signers word for it. Personally I am glad that I do not have that responsibility. Even if someone presents a seemingly-valid POA, we can't tell by looking at the document whether or not it was revoked by a later writing, and unless we're attorneys, we certainly don't need to be looking through the document to see what transactions are and aren't authorized.

Reply by ReneeK_MI on 1/6/10 1:16pm
Msg #316947

Agree with all the other responses, you're overstepping ...

Consider: just by reading the POA document, you imply by your actions that you have the authority to interpret its legality, proper/improper use, etc. That is UPL.

I think calling the title agent for any reason, for any kind of question - is commendable, absolutely. However, it's their decision, their responsibility to interpret the proper/valid/legal USE of the POA (or to call the Lender in on that decision, as they are the Lender's agent in this).

In these situations, we are notarizing the signature of the AIF ONLY, and we are identifying the AIF ONLY. If your state allows you to include a stated capacity - then that's exactly what that is, stated capacity - you aren't certifying that capacity, you can't. Actually - nobody CAN, because for all anyone might know, that Principle (who is not present) may have passed away 5 minutes ago.

I'm not sure what you mean when you say you couldn't notarize the Principle's name as it was, because the POA was in a different name - how could you notarize the Principle at all?

Reply by mwm143 on 1/6/10 1:58pm
Msg #316956

Re: Agree with all the other responses, you're overstepping ...

Loan Docs read: Jane Mary Doe by John Doe, her attorney in fact

POA read, signed and acknowledged: Jane Smith Doe

NC SOS - POA - names MUST match exactly, hence John cannot legally sign for Jane any other way than Jane Smith Doe. Knowing that and seeing the POA (included in loan package with original presented to me by borrower) I could not and would not notarize his signatures written any other way.

Would any of you? Would you simply KISS and do what TC told you to do?

Reply by LKT/CA on 1/6/10 2:05pm
Msg #316960

Re: Agree with all the other responses, you're overstepping ...

Yes, given your scenario, I would do the signing. Since John is the only one appearing before you, HE is the only one you need concern yourself with identifying. Jane is not present and therefore is a non-issue.

Reply by mwm143 on 1/6/10 2:12pm
Msg #316964

Now why am I not surprised by your answer??

Say, aren't you the same one a few weeks ago who said something about not questioning TCs even when you know they've made a mistake...that it's their problem?

Reply by LKT/CA on 1/6/10 4:20pm
Msg #317008

Re: Now why am I not surprised by your answer??

<<<Say, aren't you the same one a few weeks ago who said something about not questioning TCs even when you know they've made a mistake...that it's their problem?>>>

NO, I didn't say that - go back and read it again...Say, why are you trying to change the subject ? As a Notary, your concern is with the people in front of you. How the TC requires someone to sign is the TC's business not yours, period (unless their request violates your state's notarial laws). I agree with what others already established - you overstepped your bounds.

Reply by Linda_H/FL on 1/6/10 2:13pm
Msg #316965

OOooo....tricky tricky...

And although I do agree with your concern it's not a call you can really make...your notarization is for John Doe and you're ID'ing John Doe - validity of POA is title's issue. I'd say in this scenario an immediate call to title is order to express your concerns and point out the discrepancy..but discrepancy in her name does not mean he's NOT John Doe..the question is "Are Jane Mary Doe and Jane Smith Doe one and the same"....that's up to the AIF to prove to title, not to you. Unless your SOS authorizes you to make the determination.

Reply by jba/fl on 1/6/10 2:23pm
Msg #316967

Re: OOooo....tricky tricky...

Why not just state the entire problem at once instead of pulling bits and pieces with each ensuing message? All answers are mostly wrong now - all comments are on a totally different take of info provided.

Reply by Robert/FL on 1/6/10 2:50pm
Msg #316972

Re: OOooo....tricky tricky...

IMO - I don't care if John Doe claims he is AIF for Mickey Mouse. If he represents to me that he has POA for Mickey Mouse, and signs a document in that capacity, my acknowledgment will read: "acknowledged before me by John Doe, as personal representative for Mickey Mouse". Whether or not the original POA document says "Mickey Mouse" or "Mickey J. Mouse" or "Mickey Mouse-Smith" makes no difference to me. All I care about is ID-ing John Doe. Any representative capacity John Doe may claim is only what he represents himself to be. I am not certifying that he *IS* the AIF for Mickey Mouse, only that he *represented himself to be* the AIF for Mickey Mouse.

Reply by jba/fl on 1/6/10 3:00pm
Msg #316973

Re: OOooo....tricky tricky...

He is not personal representative for Mickey - he is attorney in fact for Mickey. There is a difference.

Reply by PAW on 1/6/10 8:01pm
Msg #317034

Re: OOooo....tricky tricky...

There is a BIG difference. Good catch Jules.

Reply by ReneeK_MI on 1/6/10 2:50pm
Msg #316971

One question - what authority does the SOS have with re:

to POA's and how they are drafted or executed? Personally I think someone at the SOS perhaps overstepped their bounds as well.