Posted by Roadie_MD on 9/3/11 1:19pm
Msg #396193

Power of Attorney question

I tried to search for an answer to this but there is so much information to sort through.....
I have a borrower that is signing with a power of attorney. This was mentioned on my confirmation. When I called the borrower to confirm I mentioned that I would need an original power of attorney in order to proceed with the signing. They told me they only have a copy, but the orginal was overnighted to their loan officer. This is not a military situation, just one where the mom is on the note but not on title, and she was unable to be physically present at the signing.

Basically I just want to confirm that my thinking is correct in this--I do need the orginal to satisfy myself as a notary that the POA is indeed valid. I just want to cever my butt on this, and am anticipating some flack from the title co.

Reply by John/CT on 9/3/11 1:27pm
Msg #396194

Re: Power of Attorney

What does the signature line say: e.g., ABC by XYZ, attorney-in-fact? Not our job to determine capacity. In any case, when in doubt, go back to whomever assigned this order to you for guidance.

Reply by Roadie_MD on 9/3/11 1:31pm
Msg #396196

Re: Power of Attorney

Yes that is how it is worded. And I have to disagree, if someone is signing for another, particularly on a notarized document, I have to verify that the POA was indeed signed by that person. Otherwise, what is there to say that it is valid?

Reply by lindetteh_PA on 9/3/11 1:30pm
Msg #396195

As a notary it is not your job nor do you have the authority to determine if the POA is valid. It is customary for the title co. or lender to make that determination which is why the original was sent to them. You can expect the title co.to be upset. Your job is to verify the identity of the signer not to verify their capacity.

Reply by Cheryl Anderson on 9/3/11 1:36pm
Msg #396197

I'm confused as to why you would be responsible to determine anything is valid, except for the type of identification used by the signers? I'd be concerned if I was asked to verify the validity of any document that was not signed in front of me...and even then it doesn't necessarily mean that the document is valid...only that the signature is.

Reply by SueW/Tn on 9/3/11 1:48pm
Msg #396201

I agree Cheryl

"I have to verify that the POA was indeed signed by that person"

IF the original signer stood in front of you then what would they need a POA for?

Reply by Les_CO on 9/3/11 1:37pm
Msg #396198

In this case you are wrong. You do not need to see the original POA. If they swear they are indeed the agent (AIF) that’s good enough for you. JMO

Reply by Roger_OH on 9/3/11 1:40pm
Msg #396199

It's not your function to determine if a POA is valid. The lender/TC already has the original POA that is satisfactory to them, and all you need to do is proceed with the signing. The TC will likely want the signer to sign as attorney-in-fact.

All you're concerned with is the signature, your notary certificate, and the usual elements of notarization.

Reply by Roadie_MD on 9/3/11 1:47pm
Msg #396200

thank you all for clearing that up for me.

Reply by Buddy Young on 9/3/11 1:57pm
Msg #396204

I agree with Roger. You are only notarizing the signature not the validity of the document.
I think it's a good idea to see the copy of the POA.

Reply by Marian_in_CA on 9/3/11 4:19pm
Msg #396214

Buddy, in CA you should NOT be asking to see it...

California law is very specific in that we are not allowed to "determine or certify" one's representative capacity. In other words, if a person claims to hold POA... then that's what we go with. Our certificates are worded in such a way that the liability for that kind of thing is totally off of us.

All we are doing is IDing the person signing. Their legal capacity to sign a document is completely outside of our responsibility. In fact, b doing this... we're making a legal decision on their behalf --- which is grounds for having our commissions suspended or revoked.

Reply by Marian_in_CA on 9/3/11 5:12pm
Msg #396217

Re: Buddy, in CA you should NOT be asking to see it...

Let me clarify that the only time we should EVER require to see a POA document (in CA) is if we're certifying a copy of an original. And, in that case... we're not even notarizing a signature. We don't need to have the original signer there, either, as we aren't certifying the validity of the document itself... just that it's a copy of a notarized original.

Reply by Buddy Young on 9/3/11 5:30pm
Msg #396219

Re: Buddy, in CA you should NOT be asking to see it...

I know we can't require to see the POA, I only said it's a good idea to see it.

Reply by Marian_in_CA on 9/3/11 5:39pm
Msg #396222

Re: Buddy, in CA you should NOT be asking to see it...

It's not even a good idea to SEE it...because to do so would be you determining their capacity, which is strictly prohibited in our handbook. It used to be that if somebody handed me one (without me asking), I'd glance over it... but I don't do that anymore. I just hand it right back and tell them that their legal capacity to sign is none of my business and I'm prohibited from determine their capacity... which means if they're signing as AIF, then that's what they're doing. I have to take them at their word. The legality of their signature is determined by courts... not notaries.

Reply by Buddy Young on 9/3/11 5:29pm
Msg #396218

Re: Buddy, in CA you should NOT be asking to see it...

Marian,

Your are correct of course.
The 6 hour class I origainally took stated that it was a good idea to ask to see the POA but it was not manditory.
I realize we are only notarizing signatures.
For the original poster, I will be as complete as possible.

You may at some point be asked to notarize the signature of an attorney-in- fact. This is where the principal signer has signed a power of attorney which allows another person to sign on their behalf. There are a number of reasons why this is done, perhaps the principal signer is incapacitaterd in some way, is out of the country, or holds a job that frequently takes them away from home. It is a good idea to ask to see the power of attorney document.

As an example, a woman named Jane M. Doe is acting as attorney-in- fact and signing for John S. Smith. The document would be signed in this fasion:
John S Smith by Jane M. Doe, attorney-in-fact
or
Jane M. Doe, attorney-in-fact for John S. Smith, principal.

Sometimes the document will have a signature line for the person acting as attorney-in-fact as well, and if so, the attorney-in fact needs to sign for themselves as well as for the principal on whose behalf they are acting.

You are only notarizing the signature of the person who is appearing before you, who is in thes example, Jane M. Doe, the attorney-in-fact. On your notarial certificate, you only name the attorney-in-fact because that is the only signature you are notarizing. You make a notation in your journal regarding the fact that the document was signed by and attorney-in-fact.

Reply by Marian_in_CA on 9/3/11 5:34pm
Msg #396221

Re: Buddy, in CA you should NOT be asking to see it...

"The 6 hour class I origainally took stated that it was a good idea to ask to see the POA but it was not mandatory. "

Your instructor was dead wrong in this case. Asking to see the POA is, in fact, "determining" their capacity... and it's against the law in California.

The handbook is really clear... it's not just "certifying" capacity that's wrong, it's "determining" it, as well.

It's a not only a BAD idea to ask, but it's also against the law. I'd love to know who you took your course from.

Reply by Buddy Young on 9/3/11 5:42pm
Msg #396224

Re: Buddy, in CA you should NOT be asking to see it...

Ok, Marian, thank you.
The only reason I remembered the class so well, is I had an attorney in fact signing as one of my first signings, and reviewed the notes several times before the signing.
I won't tell you who I took the class from, but I appreciate your expertise and won't ever ask if it comes up again.
Thanks again for the clairification.

Reply by Buddy Young on 9/3/11 6:02pm
Msg #396226

Re: When Marian talks, I listen n/m

Reply by NotaryMot/CA on 9/3/11 9:50pm
Msg #396235

Perhaps This Issue Could Permit Notaries to Check POA

Perhaps you need to look at this issue more dimensionally and consider potential liabilities. Courts interpret things as they so please these days, not as simple as you believe. They could interpret a notary's overlooking a valid POA in aiding and abetting the crook.

Here's a way a notary may be legally empowered to check for a valid POA by an attorney in fact signer:

A notary is prohibited from notarizing an unlawful document or a person committing an unlawful act. If someone is attempting to sign as an attorney in fact for someone without such authority this could be a legal basis to enable the notary to verify if there really is a POA.

The reason for this Marian is simple. There have been well documented crimes of crooks signing POA's to steal Grant Deeds to murdered people's properties. It's true a fingerprint clarifies things up, but if you knowingly participate in assisting a person in an unlawful act, that is the notary's jurisdiction to check a POA.

Any comments?

Reply by Buddy Young on 9/3/11 10:03pm
Msg #396237

Re: The key word here is knowingly n/m

Reply by Marian_in_CA on 9/3/11 10:28pm
Msg #396241

Re: Perhaps This Issue Could Permit Notaries to Check POA

"A notary is prohibited from notarizing an unlawful document or a person committing an unlawful act."

That's not entirely true. You can only get in to trouble over this if you KNOW for a fact that it's illegal. This rule really applies to those who are "in" on illegal operations or processes where they know for a fact that they are doing something they shouldn't. For day-to-day notarizations for strangers? This shouldn't ever come up unless you're delving in to places you shouldn't and asking things you shouldn't. I doubt that a crook is going to come right out and tell you what they're doing is illegal.

If you take it upon yourself (in CA) to go digging or investigating this to determine legal capacity you're overstepping your role as a notary. What you end up doing is practicing law and you end up making a legal determination -- which you get you in to even MORE trouble.

It's best to just ask as few questions as possible -- ID the person and be done with it. The less you know, the better. There are a lot of good reasons for this... after all you're supposed to be an impartial witness. You're not a detective, judge or attorney.

Reply by Susan Fischer on 9/3/11 2:45pm
Msg #396206

This is Oregon's position -

Attorney-In-Fact Acknowledgment Certificate

An attorney-in-fact acknowledgment is a type of acknowledgment in a representative capacity. The attorneyin-fact represents the person named in the document and signs on his or her behalf. A power of attorneydocument is the authorization the attorney-in-fact gets so that he or she can sign documents on the signer’sbehalf. Those documents may then be accompanied by an attorney-in-fact acknowledgment.

When a notaryneeds to do an attorney-in-fact acknowledgment, he or she often needs to see proof of the signer’s authority to sign for another. That proof is the power of attorney. A general acknowledgment notarial certificate is usually used for a power of attorney document, i.e. someone giving someone else the power to sign documents for him/her.

The attorney-in-fact acknowledgment is always an acknowledgment, never a jurat. One can never swear an oath on behalf of another. Check for proof (the power of attorney) that the signer has this power, especially in real estate matters where it should be of record. Note the proof in the journal.

The notary is not required to judge whether the power of attorney is valid for that particular transaction. However, if something is blatantly wrong, such as the document is obviously expired, or clearly says it is not to be used for the type of document being notarized, then the notary should not notarize, and should make a notation to that effect in the journal.

The signer must sign the document for the principal and for self. For example, “Effie M. Stone by Susan Brown, as attorney-in-fact.” The notarial certificate must state that Susan Brown is signing on behalf of Effie M. Stone. The signer should sign both names in the notarial journal.

A notary shall not charge more than $10.00 for an attorney-in-fact acknowledgment. "

What does the MD handbook say?

Reply by BrendaTx on 9/3/11 3:55pm
Msg #396213

Texas - Nope, for all the reasons already stated.

Oregon's SOS put just enough language to offer confusion. The law may very precise (have not looked) but this is not, I am referring to this sentence:

"When a notary needs to do an attorney-in-fact acknowledgment, he or she often needs to see proof of the signer’s authority to sign for another. That proof is the power of attorney."

This is not criticism, but I am perplexed as to why the words appear "often needs to" rather than "must".

-Do they, or don't they need to look at it?
-What circumstances makes for an "often" situation?
-How often is "often", anyhow?

Based on this statement, I'd say that "often needs to" means that the decision is up to the notary if he or she "needs to" use it for identification.

Who can tell...I notarized a POA the other day and the notary certificate was a jurat. Crazy thing was that I was doing it for an attorney's office...methinks that office needs a little notary certificate training.

Reply by Les_CO on 9/3/11 5:40pm
Msg #396223

Re: Texas - Nope / :)! n/m

Reply by Susan Fischer on 9/3/11 6:32pm
Msg #396227

Beats me, Brenda. But since it's clear that NPs aren't

authorized to verify validity of the POA, I take the language as being open to discretionary interpretation - if something doesn't smell right - we go with what makes sense at the time.

Methinks you're right about that atty's office...

Reply by BrendaTx on 9/3/11 7:01pm
Msg #396229

Glad to know your view It has been bugging me. n/m

Reply by Sylvia_FL on 9/3/11 2:56pm
Msg #396208

Check your handbook - or your Notary division

Different states have different notary laws.
In Florida it is not the notary's responsibility to ensure the signer has power of attorney. The person states he/she has that authority and indicates this fact when he/she signs.
We have to take the signers word that he/she has POA.

Reply by Ilene C. Seidel on 9/3/11 3:00pm
Msg #396209

I always accept a copy of the poa as a matter of fact I take a copy with me. The original is always sent to title/mtg for approval so I've never seen the original. You have the borrower sign the way title has told you to don't change anything. And if anything is vague call title.

Reply by MW/VA on 9/3/11 8:15pm
Msg #396230

It's been my experience that when a POA signing is

requested of me, the POA has been approved by the lender in advance. That's an absolute must!
The lender usually requires the original POA well in advance. Some will put POA verbage on the docs, some don't. They usually give you specific instructions on how they want the verbage, but check with them if they don't.
BTW, in my notary certificate, I write it as follows: "Jane Doe, individually and as POA for John Doe". Some states don't allow "capacity" in the notary certificate, but I clarify that she was signing for herself as well as another person.

Reply by doglover/CA on 9/3/11 11:45pm
Msg #396262

I only ask for the original copy of the POA if I have been instructed by escrow to collect it and send with the signed papers.

Reply by Linda Juenger on 9/3/11 11:56pm
Msg #396264

"I only ask for the original copy"

What exactly are you saying here? Either its the original or its a copy, can't be both.

Reply by Shoshana/AZ on 9/4/11 8:41am
Msg #396278

In AZ, it is "suggested" that we ask to see the POA

It surprises me that AZ (the wild, wild west) is more stringent on this than CA.

Reply by BrendaTx on 9/4/11 8:43am
Msg #396279

THANK YOU, Shoshana, I knew that, but could not

find it in the manual yesterday. Driving me crazy.

Reply by BrendaTx on 9/4/11 8:56am
Msg #396281

Do you have a page number? n/m

Reply by Shoshana/AZ on 9/4/11 8:57am
Msg #396282

It's on Page 17 of the 2011 Manual. n/m