Posted by Karla/OR on 2/10/12 1:37pm
Msg #411408
What Would You Do . . .
SCENARIO:
Went to a POA signing last night for an elderly gentleman who was obviously quite ill (in P.J.'s, with walker, oxygen, and hospital bed in his home), but of good mind and spirit. I had scheduled this appointment with his son who advised me he would have the documents, witnesses, and proper I.D. at the signing.
Just before leaving for the appointment I called the son to advise I am on my way and confirm address. He said he was in California but his sister would be at the signing in his place.
I arrived at the appointment to find one of the witnesses to be an 18 year old female with Down's Syndrome (the signer's granddaughter). She had a proper state I.D. card. I had never had this happen before.
I made the decision to go ahead with the signing but in the back of my mind wondered if for some reason it would be a legal issue down the road.
DID I MAKE A MISTAKE IN GOING AHEAD WITH THE SIGNING?
SHOULD I HAVE ASKED THAT THE DAUGHTER OR MOTHER SIGN IN LIEU OF THE GRANDDAUGHTER?
What would you have done?
Thanks. Karla
| Reply by Susan Fischer on 2/10/12 1:42pm
Msg #411410
I'd be just fine with that, Karla. n/m
| Reply by jba/fl on 2/10/12 1:49pm
Msg #411412
If I made the decision to accept her, I would not be second guessing it today. I am thinking that she knew her grandfather and watched what he did and that is what counts. Agree w/Susan.
| Reply by jojo_MN on 2/10/12 1:59pm
Msg #411413
Just make sure your know your laws for the state in which you are doing business. Different states have different laws. For example, in Wisconsin, you have to have two witnesses unrelated by blood to the person making the POA. Some states you can be related, while others don't even require witnesses.
| Reply by Susan Fischer on 2/10/12 8:48pm
Msg #411448
Karla's in Oregon, jojo. No problem here by law. I
believe she was retiscent of another concern, which has been resolved, is my bet.
| Reply by Karla/OR on 2/10/12 10:21pm
Msg #411463
Ms. Qm, you are right on! Thanks so much!
| Reply by LKT/CA on 2/11/12 9:57pm
Msg #411512
I would not have used the granddaughter as a...
witness to this transaction because she is not a *distinterested* third party. It's always a BEST practice for witnesses not to be related by blood, marriage, or adoption to principal signers. To truly be a *disinterested third party* you cannot have familial ties to the principal signers and those unrelated to the principal signers make the BEST witnesses.
While some procedures are LEGAL, they're not necessarily ADVISABLE - in other words, just because I *can* doesn't mean I *should* so again, I would NOT have used the granddaughter as a witness.
If this signing were ever brought to court (for whatever reason), it would not unravel as a result of MY part in notarizing and facilitating the witness. It would unravel for some other reason but not for anything I've done.
| Reply by BrendaTx on 2/11/12 10:09pm
Msg #411515
Agree. Could not have said it better. n/m
| Reply by Karla/OR on 2/11/12 11:42pm
Msg #411516
To: Brenda and Lisa (LKT)
So you both would have left without doing the signing?? And how would you have verbalized this to the ill father who asked that his granddaughter and son-in-law witness his POA's??? The wife and her daughter were also there - they would not be considered "disinterested" parties either then???
I'm not challenging you, just interested and looking for future insight.
Thanks.
| Reply by HisHughness on 2/12/12 12:45am
Msg #411518
I think somebody's lost sight of our role
***just because I *can* doesn't mean I *should***
I would rephrase that to be "just because I *won't," doesn't mean I "shouldn't*.l
Apparently, Lisa's major reason for contending the notarizations should no be performed was the relationship of the witnesses to the signer. One witness was related by marriage, one by blood. Neither was a party to the document to be notarized or benefitted from the transaction, nor was either barred by law from witnessing because of the relationship. They were the witnesses chosen by the signer, they were not barred from performing in that capacity -- and the notary public uninlaterally determined that she would not accept them?
That seems to me to be a really unwarranted intrusion of the notary into what should be the signer's prerogatives. To decline to notarize a document based on the contention that one of the witnesses MIGHT not be a disinterested party, though the law does not thus define him and there is no transactional reason to reach that conclusion, is quite contrary to how I view my role. I think I'm there to help facilitate the signer conduct his or her business, not to get in the way of the signer doing that by imposing unnecessary conditions on the process.
I would take the same approach with respect to a witness who has Down's syndrome. If they are aware of what they are doing, and if they would be capable of testifying coherently and with full comprehension if called upon to do so about the witnessing, I see nothing that would bar the witness. That's a closer call than the relative by marriage, but with the caveats I just mentioned, I would have done just as the OP did.
My attitude toward this kind of question is always governed by the idea that I'm there to help the signer get his business done. I think if I do my job within the law and using common sense, I'm going to be okay, whatever questions are asked of ne later.
| Reply by Karla/OR on 2/12/12 1:50am
Msg #411519
Re: I think somebody's lost sight of our role
I was so wanting your opinion Hugh, g/b/u. I'm glad we are on the same page with this and that I made the decision I did. Thanks.
| Reply by BrendaTx on 2/12/12 8:17am
Msg #411522
Karla - Enough debate. Call your notary public administrator
and ask them. Do not rely on the opinions of folks on this board so you will know next time. Figure this out for yourself and what works for Oregon laws.
I don't think it takes a rocket scientist, lawyer, or notary to realize that a granddaughter can always benefit from a grandparent. That makes them disinterested.
The Downs Syndrome is not, not, not at issue. The family tie is.
I agree 100% with Hugh that notaries must never intrude into the signing process just because we are notaries.
However, I personally know better after dealing with probate a good part of my life...even the most unsophisticated fellow that I ever dealt with in a law office did not solicit family members to witness a document for his father that he brought to us because he realized that it might be a problem. He noted that for us. It's just common sense (for me) that the cleanest transactions don't include family members. It might not be illegal, but it is not as clean.
What stands out to me in big red letters is that you have a degree of remorse over it or you would not have posted about it.
Again, I cannot state strong enough that this is a situation that you need real guidance on...not a lively notary debate. Call your officials and find out. You don't have to tell them that you did it, but tell them you feel it would benefit you to know how much you should interfere with who witnesses a POA that you are notarizing.
(Remember that my experience is from Texas and working in a law office where we did these things all of the time and that there is also a difference between knowing better from life experience and not knowing better than to do something.
One of many cases in point that I recall. My employer sent me to a bedside with a will, a POA, and another document that had to be signed. There were two daughters and a son in law. I took two student workers with me to use as witnesses. The signer was advised that the daughters were not disinterested parties and that we would supply witnesses. So, should I forget all that and not use what I know? Or, should I just let a family member sign and say I don't see anything wrong with it?
I will always think "no family" because of that.)
| Reply by BrendaTx on 2/12/12 8:20am
Msg #411523
PS - don't you work in a law office?
You could discuss with your employer, too. My former attorney boss is and was always ready to help me button down issues on notary laws.
| Reply by LKT/CA on 2/12/12 11:52am
Msg #411528
10 Star Post, BrendaTX
And dinner at your favorite restaurant!! It seems that some posters have trouble digesting what is BEST and what is legal but not advisable. Thanks for sharing your career experience, which really is the best teacher. while I don't have your direct experience, I know and network with various professional (10 - 20 - 30 years in their career field) whose advice and guidance has helped me tremendously since I've become a notary.
I definitely agree that the posts are opinions only and Karla (or anyone) should seek guidance and advice from their state's lawmakers and public officials.
Great post!!!
| Reply by BrendaTx on 2/12/12 12:25pm
Msg #411531
Re: Karla - Enough debate. Correction:
I don't think it takes a rocket scientist, lawyer, or notary to realize that a granddaughter can always benefit from a grandparent. That makes them *interested NOT* disinterested.
A grandchild has a conflicting interest.
Or something like that. Sorry...I had just gotten out of bed and flipped on the coffee.
| Reply by LKT/CA on 2/12/12 11:30am
Msg #411527
Re: I think somebody's lost sight of our role
<<<Apparently, Lisa's major reason for contending the notarizations should no be performed was the relationship of the witnesses to the signer. To decline to notarize a document based on the contention that one of the witnesses MIGHT not be a disinterested party, though the law does not thus define him and there is no transactional reason to reach that conclusion, is quite contrary to how I view my role.>>>
I was quite clear in what I wrote and I did NOT say I wouldn't notarize...I said I would not have used the granddaughter as a witness. I said that in the TITLE of my post.
<<<I think I'm there to help facilitate the signer conduct his or her business, not to get in the way of the signer doing that by imposing unnecessary conditions on the process.>>>
So am I. And as for your notion that the conditions are "unnecessary".....I was advised by attorneyS that this is a BEST practice.
Let me bottom line this for you Hugh: MY signature/seal will only be affixed to docs when I believe the outcome of the transaction is a strong win-win for now and in the future - for both the client and me. I am more than ready, willing, and able to answer to the CA SOS and a judge for my actions. Who you answer to and how you perform your duties is your business.
| Reply by LKT/CA on 2/12/12 11:05am
Msg #411525
Re: To: Brenda and Lisa (LKT)
I inform the client during the confirmation call that witnesses should not be related to them by blood marriage, or adoption - and I explain WHY (familial ties and BEST practices). After arriving at the appointment, I ASK the witnesses if they are related to Mr./Mrs. so-and-so by blood, marriage or adoption - then wait for a verbal NO.
No, I would not have left the signing. I would have worked plan "B". Since I've networked with several attorneys over the past four years - one being an estate planning attorney, I've learned early on about witnesses and BEST practices - I already know to inform the client BEFORE the appt.
If the client and witnesses lie about their relationship to each other (familial ties), then it's on THEM if the transaction were challenged in court. And believe me, a sharp attorney will ensure that everyone who had anything to do with the transaction is part of litigation. And he/she will split hairs to undue the transaction, right down to the notarizations and witnesses.
If the client says they don't have any friends, don't like their neighbors and cannot get any witnesses - I offer to be a witness (no charge) and/or call notary friends to be witnesses (they charge a small travel fee - their decision, not mine). The loan signings I've done in the past did not require witnesses. I notarize Trust packages that include Wills and those require two witnesses - I'm one and the client has a friend or neighbor be the other witness - or they can have two friends or neighbors be the witness.
| Reply by LKT/CA on 2/12/12 11:57am
Msg #411529
Undue should be Undo n/m
| Reply by Susan Fischer on 2/12/12 3:04am
Msg #411520
Have to disagree, LKT. How are you capable of determining
who is "interested" or "disinterested"? I sure wouldn't ask, not in my state.
Where is it law that the Notary must determine such a legal question?
| Reply by janCA on 2/12/12 10:07am
Msg #411524
BINGO, Susie. n/m
| Reply by LKT/CA on 2/12/12 11:10am
Msg #411526
Re: Have to disagree, LKT. How are you capable of determining
<<<How are you capable of determining who is "interested" or "disinterested"?>>>
Very simply by ASKING the witnesses present - "Are you related to Mr./Mrs. so-and-so by blood, marriage, or adoption?" The same way you ASK the client to swear to the truthful of their statement in docs when you are giving them an oath (jurat). If they lie, it's on THEM, not me.
This is not string theory, Susan.
| Reply by Linda_H/FL on 2/12/12 12:21pm
Msg #411530
Law of Descent - very easy to figure out
Relation by blood has a potential interest in the outcome; next-door unrelated neighbor or stranger out of the pizza line doesn't...
Basic theory..
| Reply by Susan Fischer on 2/12/12 3:58pm
Msg #411547
It may not be string theory, but it is not Oregon law that
a witness must be a non-family member.
| Reply by JanetK_CA on 2/13/12 2:41am
Msg #411594
Re: Have to disagree, LKT. How are you capable of determining
This reminds me a bit too much of determining capacity of a signer, which we're not allowed to do in a notary certificate. There is no mention I'm aware of in our state's notary law that refers to the use of other witnesses. The question, as I see it, is whether or not approval of witnesses is part of our function and and I don't think it is.
For example, I have one client for whom I do lots of trust executions. This attorney, who is in another city, mails the documents to the trustee(s) of the trust along with detailed instructions, which include finding one other witness. (I act as second witness.) It's the signer and the attorney who are responsible for deciding whether or not a witness is adequate. If I had some reason to believe that one of the witnesses was related or had a potential interest in the document, I might ask them about the relationship (and have done so). Usually they'll try to find someone else, but if that wasn't possible, I don't think I would take it upon myself to end the transaction. I would refer them to their attorney or client, but barring that, I think I'd leave it up to them to decide. (I'm not the attorney or decision maker. If I was doing this work as an employee of an attorney, that might be different, but that's not the case for us as independent contractors.)
I've been asked by signers several times over the years about who to select as a witness and whenever the subject comes up, I will state that I've always heard it's a good idea not to use someone who is a family member. If in doubt, I'll refer them to their attorney, but if there's no attorney involved, I think UPL restrictions would apply here just as with loan documents. If we're in a situation where witnesses are involved, either there's nothing to notarize (like with a will) or somewhere there's likely a client involved (like a title co or attorney for an out of state property.) On the rare occasions where that's not the case, I still think that we can only suggest to them that they find a different witness or witnesses if there's a family relationship.
Maybe I'm missing something here, but I'm not getting where this becomes our decision as to whether or not it's proper to proceed. Or maybe I'm misunderstanding some of these posts...
|
|
