Posted by BrendaTx on 3/25/12 8:27am
Msg #415956

Msg #415821 - Witnessess on POA/Compliance (?)

I wanted to bring this up again for my own edification.

Patrick is concerned about whether or not witnesses are necessary on a document. He refers to, "Florida Statue 709.08 states states that a Durable Power of Attorney must have two witnessess."

Lender says no. He says yes and loses signing.

What am I missing? I'm a salt and pepper head. I might be overlooking something!

I said that this is not something that notaries should take upon themselves to correct so that things are done right. If we do not agree with a legal document's construction outside of the notary certificate, do we refuse to notarize it?

To me, this sounds like UPL. Am I wrong? I am serious and not trying to argue...PAW, I sure miss you.
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Witnessess on POA/Compliance
Posted by Patrick Notary Service of FL on 3/23/12 1:12pm Msg #415821
As a SA I frequently see a doc titled "Power of Attorney and Compliance Agreement" I recenly lost a signing because the borrower was told by the lender he did not need witnessess as the POA/Compliance "was not really a POA" and therefore did not require the two witnessess. Florida Statue 709.08 states states that a Durable Power of Attorney must have two witnessess. Anybody got the down and dirty on this ???

Reply by Linda_H/FL on 3/25/12 9:18am
Msg #415960

I agree Brenda...

It's my opinion that witness requirements and notary requirements are two separate issues, and being able to notarize is not dependant upon having witnesses. The notary requirements must comport with state law in the state where notarized; the witness requirements must also comport with the state law, but in the instance of a POA and Compliance Agreement, it should be in accordance with the laws of the state where it's going to be used, not where it's signed.

Since this particular type of POA is not normally recorded, and chances are it's going to be used out of state (by title or lender wherever they may be), then IMO the hiring party calls the shots since they'll be using it later wherever they are - so if they say no witnesses, then it's no witnesses.

I have done these, followed instructions, notarized in accordance with Florida law and have had no problem.

JMHO

Reply by Linda_H/FL on 3/25/12 9:20am
Msg #415961

Re: I agree Brenda...P.S.

It's also my belief that the document preparer makes the determination as to witness requirements and notarization type - not us. We do what is requested.

Reply by BrendaTx on 3/25/12 9:21am
Msg #415962

Thanks, Linda. I could not figure out why

the debate endured, but no one said to "notarize and do not analyze".

Will be glad when Sylvia is back on duty.

Reply by Allen/Mo on 3/25/12 9:38am
Msg #415963

Re: Thanks, Linda. I could not figure out why

Finally, some common sense in the notary world. Kudos to you 2 ladies

Reply by VT_Syrup on 3/25/12 10:54am
Msg #415969

Does notary need to know if he/she can be a witness?

I agree the notary is not responsible for knowing whether a document must be witnessed. But the document preparer requests one or more witness(es), is the notary responsible for knowing whether the notary can serve as a witness. If so, that is very complex even for the notary's home state, never mind documents to be used out of state.

Reply by Linda_H/FL on 3/25/12 11:17am
Msg #415972

"is the notary responsible for knowing whether the notary

can serve as a witness"

Yes, IMO that IS the notary's responsibility - and it's up to the notary to check with the hiring party to make sure it's allowed...some states allow it, some don't - some transactions allow it, some don't...and a notary acting as a witness on a document or in a transaction where it's prohibited MAY invalidate the document.

A notary is authorized to act as a notary - that's a given - but any other action by the notary requires approval/confirmation from the hiring party/document preparer...

JMHO

Reply by VT_Syrup on 3/25/12 11:35am
Msg #415976

Re: "is the notary responsible for knowing whether the notary

For sure, a notary should know that if required to take the acknowledgement(s) of witness(es), or administer an oath to them, the notary cannot serve as a witness. But if the notary is only taking the acknowledgement of the principal, I'm not sure; maybe that's the job of the person preparing the document.

Reply by FlaNotary2 on 3/25/12 11:40am
Msg #415978

In FL our handbook and required education curriculum covers

this, so a Florida notary should be well versed in this topic.

Reply by FlaNotary2 on 3/25/12 11:42am
Msg #415981

IOW, all FL notaries should know that they CAN sign as

a witness, except in those rare circumstances where the witnesses signatures are being notarized. Again, this is covered in our handbook.

Reply by Linda_H/FL on 3/25/12 11:46am
Msg #415982

Or except when prohibited by the document preparer..

And it's not our call.

FL statutes allow us to act as a witness - so if asked to be a witness we can and we're covered. But we cannot assume that we can be a witness in ALL circumstances. That's why we need to check on a case by case basis.

Reply by Linda_H/FL on 3/25/12 11:41am
Msg #415979

Re: "is the notary responsible for knowing whether the notary

"maybe that's the job of the person preparing the document."

And it's the responsibility of the notary to check with that person or have the signer (during GNW) to check with that person - but they should not take it upon themselves to "assume" it's okay for them to act as a witness.

I've had instances where I was NOT acknowledging the signatures of the witnesses and I was specifically prohibited by the hiring party from being a witness. Why? Because they said that's the way it is....

Reply by JanetK_CA on 3/25/12 5:35pm
Msg #416009

Re: "is the notary responsible for knowing whether the notary

"a notary should know that if required to take the acknowledgement(s) of witness(es), or administer an oath to them, the notary cannot serve as a witness."

This isn't true in California, either. I've often assisted at estate plan executions. With one attorney, he's always present and he and I are the witnesses - even on a few documents that he has me notarize. (And this guy is a real stickler for details.) Far be it for me to question.

Witness requirements are not even referred to in our notary handbook, as we are not a "witness" state. For doc packages for properties located elsewhere, I generally find instructions on any witness requirements, as there should be. Outside of our own state, I don't believe we should have to be checking on that every single time. We should be notified if witnesses are required and that should include whether or not we can be one of them. But for those operating within a state that does have witness requirements, it makes sense to me that they should be aware of them.

However, what occurs to me with this discussion is that one of the reasons for UPL, imho, is that sometimes a little bit of knowledge can be a dangerous thing. There may be other things involved that we aren't aware of, so we shouldn't be giving advice outside of our own area of authority. I'm not going to comment on how that impacts POAs in Florida, because that's definitely something I know just enough about to be dangerous!

HOWEVER... sometimes a little bit of knowledge can lead us to ask a question that can help prevent a problem. For example, if I had a seller's package for a Florida property with a Warranty Deed and no mention of witnesses, I'd probably be asking my client about that. (I clearly wouldn't be telling them what to do, though.)

Reply by JanetK_CA on 3/25/12 6:06pm
Msg #416012

Correction...

It's been pointed out to me that VT_Syrup was probably referring to notarizing the signatures of the witnesses themselves, which is right, of course. I stand corrected!

We never notarize witness signatures here, so that never occurred to me. That's what I get for popping off on stuff that I'm just reading through quickly (when I should be cleaning house...!)

Reply by leeinla on 3/25/12 8:42pm
Msg #416019

Re: "is the notary responsible for knowing whether the notary

I just want to make sure that I can notarize living trusts and witness at the same time. Isn't there a conflict of interest? There is no conflict of interest even if I am not related to the signer. I am talking about notarizing in CA only. I don't want to ask dumb questions, but I just need a little bit of clarification.

Regards,

L.

Reply by VT_Syrup on 3/26/12 8:52am
Msg #416030

Re: "is the notary responsible for knowing whether the notary

In some situations (like wills), in some states, the notary is expected to administer an oath to the witnesses, or take the acknowledgement of the witnesses. The witnesses have made some kind of statement in writing about what they saw, and in a few situations the witnesses must be made to stand behind their statements by either swearing or acknowledging. If the notary were one of the witnesses, the notary would have to take his own acknowledgement, or administer an oath to himself, which is not allowed. So in this kind of situation, the notary must not be one of the witnesses.

As long as there are enough witnesses other than the notary, the notary can administer what oaths are required to the principal and/or witnesses, and take the acknowledgements of the principal and/or witnesses.

Reply by FlaNotary2 on 3/25/12 11:13am
Msg #415971

Ok, so if an NSA was notarizing a deed that didn't have

lines for witnesses, it is now UPL for the NSA to note that deeds require witnesses? Funny because I brought up the same issue a few years ago... I had notarized a deed and, even though I knew witnesses were required, I didn't say anything because I thought that doing so might be considered UPL. And the members of this board unanimously disagreed, and stated that even though I am not an attorney, it would have been okay for me to let the person know that witnesses were necessary on a deed.

Same applies to a power of attorney. Powers of attorney in Florida require witnesses. Period. And this does not only apply to durable powers of attorney. It applies to any document where somebody is granting another person the authority to act on their behalf, according to the statues. Whether the power of attorney last one day or has no expiration date, a power of attorney is a power of attorney.

Reply by FlaNotary2 on 3/25/12 11:27am
Msg #415974

Re: Ok, so if an NSA was notarizing a deed that didn't have

Also, it is not UPL to know the law. We are expected to all know it ("ignorance of the law is no defense")...

It is not considered practice of law for me to read somebody a statute. I can't advise them how to apply the statute, but I can tell them what the law says. If I tell someone that Florida Statutes requires POAs to have witnesses, this is not UPL. If they say they still don't want witnesses, fine. But I would at the very least let them know the requirements of law, and this, IMO, is not UPL.

Reply by Linda_H/FL on 3/25/12 11:34am
Msg #415975

You just made the point for us, Robert...

If we're told no witnesses required, that's what we follow. If we let them know what the law says (witnesses required in FL on POA'S, witnesses required on deeds of conveyance) and they choose not to have witnesses, that's their problem. That decision doesn't keep us from notarizing though - even though we may know the document, in the end, will be worthless.

MY problem with this is if, after the fact, hiring party finds out that "whoops, we should have had two witnesses" and they add witnesses when the receive the doc back at the office - and if you think that doesn't happen, well, I'm selling bridges.

Reply by BrendaTx on 3/25/12 2:10pm
Msg #415998

These discussions are the best. I learn.

*If they say they still don't want witnesses, fine. But I would at the very least let them know the requirements of law, and this, IMO, is not UPL.*

I've seen many LPOAs in loan packages that did not require notarization.

If it is good enough for the lender to rely on, I'm not going to argue. If they make changes to documents, they have to defend their actions. How dumb would it be for them to say, "That silly notary did advise me that I needed witnesses on this legal document that I prepared."?

I am not comfortable leaving it as if a notary should tell the lender how to draft a document. Robert, this is not an affront on you or your knowledge. It is me, you, and the NR gang whittling on an issue until it is clear.

Reply by C. Rivera Chicago Notary Services on 3/26/12 1:06pm
Msg #416076

yes, even by reading a statute to someone else, other

than an attorney, may still be construed as UPL...read up on your UPL laws buddy...lots of case law out there to support this...

Reply by FlaNotary2 on 3/26/12 3:31pm
Msg #416111

Wow, now only lawyers are allowed to read the laws I guess n/m

Reply by LKT/CA on 3/25/12 12:35pm
Msg #415988

Agree with Brenda and Linda

Outside of notarizing, when we have a heads up on something, we can only inform the client of what's what. It's up to them to do with the info as they see fit. If they ignore the heads up and give orders to proceed, and the doc is kicked back, it's on THEM.

Kinda like future dated loan doc packages (NOT a split signing). We inform the hiring party that docs are dated for the future - if told to proceed anyhow, then it's a go. If docs get kicked back - which I've done two signings where docs were dated for the future (not a split signing), brought it to the attention of the LO/TC and was told to proceed and both times the package was kicked back (investors had issues with them).