Posted by Marian_in_CA on 2/3/11 2:59pm
Msg #371421

CA Notaries... how would you handle this?

I have a man in a nursing home. His son is the attorney in fact and has, reportedly, been abusing his power. The man and his family want to revoke the POA. The attorney called me and has written it up --- but there's a snag. The son has the man's ID and under no circumstances is he allowed to know this is going on until it's done. They only have a photocopy of the ID -- which, of course, I can't use. The lawyer and the family and this man are in a big hurry and want me to use credible witnesses.

Thing is, he *HAS* ID, but they're telling me that the son will not turn it over for any reason.

My gut is telling me to run from this one.

Reply by Linda_H/FL on 2/3/11 3:07pm
Msg #371425

I'm not in CA....but....

Can they get someone from social services at the nursing home call the son and have him bring in the ID?

Reply by Marian_in_CA on 2/3/11 3:09pm
Msg #371427

Re: I'm not in CA....but....

Not at this nursing home...they have a specific rule against it.

Reply by Glenn Strickler on 2/3/11 3:19pm
Msg #371434

Re: I'm not in CA....but....

"Not at this nursing home...they have a specific rule against it"

I am confused, what do they have a rule against?

All nursing homes, county and private, are regulated by the state. A person from social services (or a county ombudsman) can walk in there any time they want if the nursing home wants to stay in business.

Reply by Marian_in_CA on 2/3/11 3:24pm
Msg #371437

Re: I'm not in CA....but....

It is the policy of the nursing home that their staff cannot act as witnesses to the signing of documents or as credible witnesses. Trust me, I've asked. I've been there many times.

Reply by Linda_H/FL on 2/3/11 3:26pm
Msg #371439

Marian...I didn't say have them act as witnesses

I said have social services call the son (AIF) and request the ID - have him bring it in - "they're updating their files and they do it every year" - or something along those lines...my doctors do it all the time...they, at the same time, can ask him to bring the original POA in for them to photocopy..

How he can refuse is beyond me - if the father is alert and lucid - have him call his son and tell him to bring the ID in...

Reply by Marian_in_CA on 2/3/11 3:40pm
Msg #371449

Re: Marian...I didn't say have them act as witnesses

I asked that exact thing, actually. The lawyer said that the son would be very suspicious because he and the administrator are friends and they have copies of his ID already on file.

I didn't fully get it either...

Reply by Cari on 2/3/11 3:36pm
Msg #371448

good idea Linda...but sort of deceitful....no? I'd walk. n/m

Reply by Linda_H/FL on 2/3/11 3:41pm
Msg #371451

Sort of - it's not even her job to line this up

that's up to the family/signer/attorney or whatever...

She asked - was just throwing it out there..

Reply by Tish/CA on 2/3/11 3:08pm
Msg #371426

Does the father have any other valid proof of ID besides the one his son has in his possession?

Reply by Marian_in_CA on 2/3/11 3:19pm
Msg #371433

He doesn't... I guess it's a really bad situation. The siblings and the attorney discovered some hinky stuff going on yesterday, and I'm just in awe at what they're telling me. Not that it's any f my business... but you know how you end up hearing the whole story.

The nearest people who could serve as CW's are 90 minutes away, since everyone else has financial interest. The AIF (the son) has all of his stuff and is friends with the administrator at the nursing home.

I just have to wonder if this qualifies under the CW provisions. He does not possess his ID --- someone else does. He cannot get ID because he has an AIF. But ID does exist.... I could see both sides of it.

Reply by Cari on 2/3/11 3:45pm
Msg #371452

the attorney can just take this to court...emergency motion

to appoint an alternate AIF...like himself for example...

If there's any real funky or illegal foul play, the attorney would be most successful in taking this matter to court, rather than trying to coerce a CA notary such as yourself to sort of 'break any rules', which of course, you won't do.

Besides, its my understanding that a court issued POA trumps any regular ole' notarized POA...

Not that I am suggesting you advise his attorney of this...I'm just saying there are other ways he can handle this situation for his client, w/out involving any potential bending of the notary rules...

Reply by roxierox/TX on 2/3/11 7:12pm
Msg #371505

I wouldn't touch this one. It is a sad story and it happens all of the time. Elder abuse is very serious. Charges should be filed against the son.

Reply by JAM/CA on 2/3/11 3:14pm
Msg #371429

Trust your gut! Does the man in the nursing home have a passport or CA Senior ID card? Too much involvement for me. People always try to explain their whole life for some notarizations. What I care about is, do you have current I.D. and is what you're asking me to do legal?

Son will not relinquish I.D. that is available and current. Why would the son be allowed to keep his Father's I.D., if the Father wants it back? Seems to me, other legal issues enter into this scenario.

Reply by Glenn Strickler on 2/3/11 3:15pm
Msg #371431

Of course if they had just lied and not told you he had an id and wanted to use the credible witnesses then what would you do?

I wonder if the senior is even aware of what is going on? I have had cases where I have refused the notarization based on the signer not being aware. The family needs to go to court and get conservatorship if they think the son is abusing his power. This sounds like it's beyond revoking a POA.

I would go with your first instinct here and run from it. I smell a lot of unrefrigerated fish here ...

Of course, there is another thought. If I memory serves, there is an Long-Term Care Ombudsman over on Sierra Highway that can intervene in the case of discovered elder abuse.

Reply by Marian_in_CA on 2/3/11 3:22pm
Msg #371435

Thanks, Glenn. I've got the ombudsman's number and left a message already. The whole thing is weirding me out... but I have to come up with a really good reason to refuse. The attorney's paralegal (who is also a notary) keeps telling me I can use CWs in this case. I told her that since they know him, why don't THEY travel to the nursing home and do it? They're 90 minutes away.

Reply by Glenn Strickler on 2/3/11 3:29pm
Msg #371441

Just don't go ....

Sounds like you need to read my book of excuses.

You can refuse the notarization based on the poor old guy not being aware, in your opinion.

Remember If you are a brick and mortar notary and someone comes to your office and all appears in order, then you can't refuse the notarization according to the book. However, there is not one word in that handbook that says you have to TRAVEL there to do it .......

"My car won't start".

"I was called out of town."

Reply by C. Rivera Chicago Notary Services on 2/3/11 3:49pm
Msg #371455

...."flat tire, I've got the chicken pox".... n/m

Reply by Glenn Strickler on 2/3/11 3:57pm
Msg #371466

Took Charlie Sheen to rehab ... n/m

Reply by Linda_H/FL on 2/3/11 4:01pm
Msg #371471

ROFL Glenn...then lunch with Lindsay..:) n/m

Reply by Marian_in_CA on 2/3/11 4:04pm
Msg #371473

I usually just go with, "I'm booked." n/m

Reply by C. Rivera Chicago Notary Services on 2/3/11 4:40pm
Msg #371483

Rehab...classic Glenn! n/m

Reply by Cari on 2/3/11 3:52pm
Msg #371459

Marian, how are you supposed to supply the CW's? n/m

Reply by Marian_in_CA on 2/3/11 3:55pm
Msg #371463

Re: Marian, how are you supposed to supply the CW's?

IN this case, they have two CWs lined up, who would be traveling from out of the area to do it. The father's attorney told them to do it because of no ID. I just didn't think I could use CWs in this case because the daughter told me that there *was* ID, it was just a touchy situation.

Reply by C. Rivera Chicago Notary Services on 2/3/11 4:39pm
Msg #371482

Re: Marian, how are you supposed to supply the CW's?

....interesting...

Reply by JanetK_CA on 2/3/11 3:36pm
Msg #371447

Glenn, you make some good points about the father's awareness. On the original question, though, it could be argued that there is a difference between "having" an ID and there being one in existence somewhere. If the father is in a nursing home, it's understandable that the son - who does now have POA for his father, after all - may be in possession of the father's ID. So I think CWs could be in order, because if the father doesn't have access to it, he doesn't
"have" it and it appears it would be at least "difficult" if not "impossible" for him to get it without risking further harm, if what you've been told is correct.

However, I'd be more concerned about who to believe and if the father was really capable of making the decision to relinquish the POA. Who knows under what circumstances it was issued in the first place?

I had a situation once with a woman living in an assisted living facility who was at least well into her 80's. I met with her and her attorney (who hired me), who had been taking care of her affairs for quite some time. I don't remember exactly what it was that we were having notarized, but it was something that was giving some additional authority to the attorney (who I think already had her POA) and I ended up not going through with it. At the time, I think it was an ID issue, but in the process of discussing it, I began to believe that even though this lady sounded like she knew what was going on, she didn't really understand what it was that the document was providing for. And this appeared to me to be a potential conflict of interest for the attorney, who I didn't know. We were going to reschedule after she got the ID situation straightened out, but he ended up having a notary from his office meet him there to take care of it. I was very happy to be done with it. This might have been a perfectly legitimate situation, but I had no way of knowing if this guy was helping her or robbing her blind.

Making that kind of decision is "above our pay grade", as has often been said here, so maybe another solution IS in order. This sounds like one of those go-with-your-gut situations...

Reply by Glenn Strickler on 2/3/11 3:53pm
Msg #371460

It sounds like one party is trying to revoke the POA without the other party finding out. It just sounds like this could blow up in Marian's face .....

Reply by Stamper_WI on 2/3/11 3:19pm
Msg #371432

Marian. there are other avenues for elder abuse of any kind. It may well be the other kids, who are contacting you are attempting this. Maybe they think to much of their inheritence is going toward his care. I would contact social services elder abuse to look into it.

Reply by GOLDGIRL/CA on 2/3/11 3:33pm
Msg #371445

First of all, you don't *know* anything about his ID. You only *know* what he and his family are telling you about the son hoarding the DL. So back to square one: Do you think he qualifies for CWs according to your interpretation of the code (that it would be difficult or impossible for him to obtain another form of ID and that the CWs have no financial interest in the document being acknowledged). If everybody weren't in such a flippin' hurry, he could get a duplicate from DMV. Does he have a passport (probably not)? As far as your gut feeling, I know what you mean, but there are other factors: Is he giving POA to sombody else? Like to somebody pressuring him (and you) to sign immediately? Is the man totally competent, in your opinion. Does the attorney who drew up the revocation seem on the up and up? (Of course, how would we really know?) Are they afraid the son is on the brink of doing something disastrous? (In which case the family could tlll the other party the son is out of control and it's in their best interests to hold off). Why are the family members afraid of demanding the ID back from the son? Probably because the attorney/son would make a preemptive strike to revoke the POA revocation and this would all be tied up in court for the next 50 years! All these factors could help make up your mind. Good luck!

Reply by janCA on 2/3/11 3:31pm
Msg #371443

I'm not seeing anything about elder abuse, just that the son is abusing the POA.

I would contract with the attorney and/or family and go speak with this gentleman and see what he has to say, if in fact he is cognizant of what is going on. That would be the only way to decipher if you want to use CW's. And since he is unable to provide his ID as he does not possess it, the son does, then and only then would I notarize his signature. The law states that the circumstances of the signer are such that it would be very difficult or impossible for the signer to obtain another form of ID.

Reply by Glenn Strickler on 2/3/11 3:51pm
Msg #371457

Elder abuse can take many forms. Misusing the elders finances (with or without a POA) is a form of elder abuse. In fact, it is probably the most common type, IMO.

Reply by James Dawson on 2/3/11 3:48pm
Msg #371454

Marian, a couple things comes to mind.

1. If there are no stipulations in the POA he can do whatever he wants right or wrong.
2. Is it a Revocable POA?
3. He doesn't qualify for creditable witness because he can get another ID (unless he is unable to move) and is he on medication?
4. There should be a social worker assigned to that nursing home who could intervene as mentioned before.
5. Lastly, the attorney can get a subpoena from the D.A. to surrender the personal property to it's rightful owner, and have the sheriff serve him while he's visiting.

You cannot do it because......you are going on vacation!

Reply by Marian_in_CA on 2/3/11 3:51pm
Msg #371458

Actually... does packing my house and moving count? Because I *AM* doing that!

As of 2/25, I'll be operating out of CalCity... *sigh*

Reply by James Dawson on 2/3/11 3:53pm
Msg #371461

Congrats! n/m

Reply by Marian_in_CA on 2/3/11 4:01pm
Msg #371470

Re: Congrats!

Thanks... in a way, it's great. In others, it's a big hassle.

Reply by Cari on 2/3/11 3:56pm
Msg #371464

Is this far away from where you are located now? n/m

Reply by Marian_in_CA on 2/3/11 4:00pm
Msg #371469

About 45 minutes north... in the middle of nowhere...

right now I live a few miles to the south of Edwards AFB.... my new place is a few miles north.

Oddly enough, though... most of the calls I get for loan work are actually in that area than where I live now, so it will actually help. It's just kind of ridiculous. The town has a golf course and a Rite-Aid, but no grocery store.

In the end, our expenses are going down and work opportunities are going up. Can't complain too much.

Reply by CopperheadVA on 2/3/11 4:04pm
Msg #371472

Re: About 45 minutes north... in the middle of nowhere...

Oh come on Marian, you KNOW that as soon as you move, all the calls you get will be for the area where you USED to live. That's just the way it works! ;o)

Reply by Marian_in_CA on 2/3/11 4:05pm
Msg #371474

So true!!!! n/m

Reply by Cari on 2/3/11 4:43pm
Msg #371484

Well, I hope you're a notch or two UP in your premier

membership. And I hope you and yours are very happy at the new place! Congrats!

Reply by Marian_in_CA on 2/3/11 3:50pm
Msg #371456

UPDATE...

Thanks all. I spoke with about 7 different people involved in this (the father, the attorney, the nursing center, etc.), and I have a pretty clear picture of the situation. I won't go through all the details... but I was comfortable enough in my decision to decline based on the fact that he has identification... the family members just aren't willing to go get it. In my opinion, it would not be "difficult or impossible" to get the ID --- it's possible, they just don't want to alert the son to anything until the POA is revoked. There are more details.... but IMO, it would be possible, just, "unpleasant" in many ways. To me unpleasant does not equal difficult or impossible.

Reply by Glenn Strickler on 2/3/11 3:56pm
Msg #371465

The right call ......

You can save the other excuses for another case ....

Reply by PAW on 2/3/11 5:54pm
Msg #371493

Does the revocation **require** notarization? If it isn't required to have the principal's acknowledge their signature, then there isn't an ID issue. The principal simply signs the revocation and have two witnesses also sign. You may be able to have the witnesses swear to the fact that they witnessed the principal sign the revocation without having the witnesses swear to the identity of the principal.

According to the Florida Bar,

TERMINATION OF THE POWER OF ATTORNEY
When does the attorney-in-fact’s authority under a Durable Power of Attorney terminate?
The authority of the attorney-in-fact of a Durable Power of Attorney automatically ends when one of three things happens: (1) the principal dies; (2) the principal revokes the Power of Attorney, or (3) when a court determines that the principal is totally or partially incapacitated and does not specifically provide that the Power of Attorney is to remain in force. In any of these three instances, the Durable Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as attorney-in-fact, he or she is acting without authority. The power to make health care decisions, however, is not terminated when a court determines that the principal is totally or partially incapacitated unless the court specifically terminates this power.

What is the procedure for a principal to revoke a Power of Attorney?
Written notice must be served on the attorney-in-fact and any other party who might rely on the power. The notice must be served either by any form of mail that requires a signed receipt or by certain approved methods of personal delivery. Special rules exist for serving notice of revocation on banks and other financial institutions. Consult with your lawyer to be sure proper procedures are followed.

(Source "Florida Power of Attorney" by the Florida Bar Association - http://www.pawnotary.com/documents/Florida%20Powers%20of%20Attorney.pdf)


California Probate Code § 4151 and 4153 sets forth the rules for revocation of a power of attorney in California:

4151. (a) A principal may revoke a power of attorney as follows:
(1) In accordance with the terms of the power of attorney.
(2) By a writing. This paragraph is not subject to limitation in the power of attorney.
(b) An attorney-in-fact or third person who does not have notice
of the revocation is protected from liability as provided in Chapter
5 (commencing with Section 4300).

4153. (a) The authority of an attorney-in-fact under a power of attorney may be revoked as follows:
(1) In accordance with the terms of the power of attorney.
(2) Where the principal informs the attorney-in-fact orally or in writing that the attorney-in-fact's authority is revoked or when and under what circumstances it is revoked. This paragraph is not subject to limitation in the power of attorney.
(3) Where the principal's legal representative, with approval of the court as provided in Section 4206, informs the attorney-in-fact in writing that the attorney-in-fact's authority is revoked or when
and under what circumstances it is revoked. This paragraph is not
subject to limitation in the power of attorney. * * *

California law states that the POA may be revoked by the principal through "a writing" but does not further clarify or dictate what must be contained in the writing nor give a form. Section 4153 states that, to be effective, the attorney in fact must be notified of the revocation (i.e., delivered a copy of the writing). A third party (i.e., the bank) has legal protection for relying on a properly executed POA until it receives notice of the POA revocation. If you have written a revocation of a POA for which you are principal and delivered it to both the attorney in fact and your bank, then (in my mind) the bank can no longer legally allow the attorney in fact to act on your behalf under the POA.

(Source: "Ask a Lawyer Power of Attorney Archives" http://www.medlawplus.com/askalawyer/poa/question69.tpl)

Reply by anotaryinva on 2/3/11 5:56pm
Msg #371494

Please keep us updated. I'm sure you will hear more n/m

Reply by Marian_in_CA on 2/3/11 6:30pm
Msg #371500

Paul, you know what? I asked the attorney that exact same thing. I have never notarizaed a signature on a POA revocation. Not that it isn't done, of course... I've just never done it, or seen it done. I assumed the revocation would be anything in writing.

I don't think he was the sharpest tool in the shed because he said, "Of course it does. It's just like an power of attorney and without the notarization, it isn't legal."

I had to keep my mouth shut.

Reply by LKT/CA on 2/3/11 8:50pm
Msg #371518

<<<The lawyer and the family and this man are in a big hurry and want me to use credible witnesses.>>>

Sounds like what I went through with "Suzie" and her mother. You made the right choice....this appt would have been a PITA.....all the secrecy - don't let so-and-so-know.....I wouldn't want to be a part of that sharade either.

Because of what I went through with "Suzie's" mother - no longer do I accept the "I don't have ID and need this notarized yesterday" excuse. I will question the caller thoroughly to discern whether it really would be difficult or impossible to get or ID or if they just don't want to be bothered going to the DMV. If it's the latter, I will NOT offer the credible witness option. I will instruct them to get ID at the DMV, then refer them to the UPS Store.

People whose ID is lost or stolen typically get it replaced right away - they are responsible - they take care of business. Those that lollygag and let their ID expire without renewing it are irresponsible and their issues/appts are usually PITAs - they get referred to the UPS Store.