Posted by Matham on 4/28/11 11:20pm
Msg #381697

California Durable Power of Attorney

Tomorrow, I will be notarizing this document and I did some investigative research via google and my California notary primer book that I ordered from the NNA to properly further familiarize myself with this process and I'm concerned:

I found two different forms regarding the California DPA, one with the correct notarial verbiage and the other with the incorrect verbiage though it does state that it is a California document.

http://www.kinseylaw.com/freestuff/persfam/poweratty/californiastatutorypower.htm

This form has the correct verbiage.

http://bhpadhc.org/yahoo_site_admin/assets/docs/CALIFORNIA_GENERAL_DURABLE_POWER_OF_ATTORNEY.131140608.pdf

This one does not.

Which one is correct?

Furthermore, I'd like to make sure of a couple of things:

The principal who appoints the person to make the decision in case of incapacitation; are they called the "proxy"?

My primer indicates that the principal signs the journal in case the "proxy" is unable to, but if the proxy is able to, do they both sign the journal?

Yet, I'm thinking that if the principal is unable to sign, then the proxy will have to sign their name followed by "as attorney in fact for so and so", right?"

But then I wonder, if the principal is unable to sign the journal, then isn't this a matter of signing by mark and ergo, two witnesses are then required.

It occurs to me now that I probably asked the sister whether her sister was awake? Maybe I'm just confusing myself and over thinking this.

Reply by Matham on 4/28/11 11:48pm
Msg #381699

Re: nevermind, i got it. sorry. n/m

Reply by JanetK_CA on 4/29/11 1:09am
Msg #381703

Yeah, you're probably over-thinking it, so hopefully what you figured out that the correct verbiage doesn't vary by what type of document it is.

And naturally, there's a big difference between notarizing someone who is using a POA vs. notarizing the POA itself. If it's the latter, you are basically just notarizing someone's signature on a document. Period. And if it's the former, you should get the format for how your Attorney in Fact should sign from the client. There are several different ways it can be done. Finally, you shouldn't have to worry about any verbiage other than the notary certificate and that should ONLY come from the Secretary of State.

BTW, imo, the ultimate source a CA notary should be using for reference about ANY notary issues is the Notary Handbook issued by the SOS. It's available for download for free from their website. The NNA handbook(s) has/have been known to have incorrect information. I have the SOS office in my cell phone contacts list and bookmarked on my PC. I wouldn't trust any other source.

Just in case....

Reply by RonA/CA on 4/29/11 2:23am
Msg #381705

I (at 8:00pm) just completed a POA signing (for Chase) with fax backs (only 40). Almost 100 pages with signatures & some pages with initials too. The wife(65 yrs old) signing for her husband (70 yrs old) 'had to sign his name', then 'by' & 'her signature', followed by 'as his attorney in fact'. Then initialing was done with his 'initials', then 'by' & 'her initials', followed by 'as his attorney in fact'. This couple had unusually long names and the docs required first, middle, last names. I thought it would take forever, because of the ages and length of names, to get the docs signed (fortunately only 2 notarizations DOT & AKA AFF) but we finished in 90 minutes. This was because the wife was a nurse, very educated, and wrote legible and fast.
"and the icing on the cake was title didn't hesitate meeting my $xxx fee!!!"

Reply by JanetK_CA on 4/29/11 3:31am
Msg #381706

I did a seller's pkg last night via POA. Lender instructions had the AIF signing her name first, then "as Attorney in Fact for [principle]". That was the first time I think that I've seen that order requested, but it just goes to show that you never know... Fortunately, my signer was pretty savvy - signing for a parent, so we got through it in reasonable time, as well.

BTW, for the initials, you might have been able to get away with "...as his AIF".

Reply by Linda_H/FL on 4/29/11 3:58am
Msg #381707

A few things, based only on if this is the signing of a POA (as opposed to a closing using a POA):

First off, ditch that primer - based on your post I think it's just confused the issue... here's the link to your 2011 handbook http://www.sos.ca.gov/business/notary/forms/notary-handbook-2011.pdf Keep it handy - print it out and carry it with you - as Janet said that's your bible - your definitive word on proper notarial procedure.

You researched the form - I hope for your own knowledge, as you do NOT provide the forms to be signed - the people calling you for the services must not only provide the form but have it completed when you get there.

The person signing the POA granting the powers and appointing an agent to act on their behalf (the Attorney-in-Fact) is called the "principal" - they will sign both the POA *and* your journal. If the form provided calls for witnesses then you can note the witnesses names in your journal but you're not notarizing their signature so they need not sign your journal.

I'm not sure where you're getting the word "proxy" - I think that's what's most confusing about this. The person signing the POA (the principal) must be cognizant of what's going on and be able to declare they're aware of what they're doing - and must be able to sign the form *somehow* - if they're not cognizant, if they're unaware, asleep, medicated or unconscious, they need more than a POA - they're at a point of needing court intervention to appoint an agent, guardian or conservator - there is no "proxy" signing here...and no one can be considered the Attorney-in-Fact until that person (the principal) has signed the POA and appointed them.

When you get to the appointment you'll look at the form, see if it has CA compliant verbiage - if it does you're good to go, if not you'll conform the pre-printed ack to be compliant or attach a loose cert to the POA...job done.

Hope this makes sense - it's really really early..

Good Luck.

Reply by Matham on 4/29/11 8:36am
Msg #381711

I downloaded the handbook onto my Droid last night. I got proxy from the primer.

Reply by JanetK_CA on 4/29/11 4:21pm
Msg #381762

"I got proxy from the primer." Figures... Glad you got the Handbook!

To try to add some additional clarity, usually when someone asks us to notarize a POA, it's with the intent of giving someone else the authority to act on their behalf. The tricky part of this type of a transaction is that people often don't want to do this until they really need to and often wait too long, so then we potentially run into issues of competence. (An event like a stroke can change someone's situation suddenly.) Does this person truly understand what they are signing and are they capable of making a proactive choice to put that third person in charge of all their affairs (or whatever it is the POA gives authority for)? That's the extent of our responsibility, that there is willingness and competence.

Having said that, there is nothing in CA notary law that I'm aware of that explicitly states this (i.e. competence) and I've been told by the CA SOS office that we aren't expected to have the expertise to be able to make a medical determination of someone's competence. However, I believe that as a matter of ethics, we should be cognizant of the implications of what it means to notarize someone's POA and that we have a moral obligation to be at least reasonably comfortable that the person whose signature we're notarizing isn't being coerced or manipulated to turn over their checkbook (or whatever) to someone else. [Keep in mind that fraud most often occurs within families - or so I've been told.]

I have had more than one occasion where I have refused to notarize a POA for an elderly person. One time, the person clearly had some sort of dementia. I remember another one where there was a bit of a language problem - and probably some dementia. The person who called me was trying to intimidate me into doing the notarization. He claimed to be the son of the old woman, but he could have also been just a caregiver. (There were lots of questions...)

Bottom line, this is one issue where we need to be careful and tread lightly, because there could be significant liability. When in doubt, refer them to their attorney. (And if you do notarize, be sure to get a thumbprint - now a legal requirement for these.)

On the other hand, if it involves a situation where a POA has already been signed and notarized, that is none of our concern. Then it's just a question of finding out the particular signature format that the recipient of the document wants to be used.

Reply by GOLDGIRL/CA on 4/30/11 2:17am
Msg #381804

Excellent post, JanetK! n/m