Notarizing a Power of Attorney

Most notaries take great care not to engage in the unauthorized practice of law, but some understandably grow concerned when presented with a power of attorney or other legal document. It's helpful to familiarize yourself with the various documents you might be called upon to acknowledge and to consider how you should answer if asked to draft or edit one.

Power of attorney. A power of attorney is a legally binding document that grants a specified person power over his or her assets, legal-decision making, real estate transactions, and medical decisions in the event the individual is incapacitated or otherwise unavailable.

A valid power of attorney requires two parties: the principal, who is the person signing the power of attorney, and the agent (sometimes called attorney-in-fact), who is the person given power to act on behalf of the principal. In most states, a power of attorney gives an agent the power to assist the principal with his financial affairs (e.g. managing bank accounts and real estate) or to make health care decisions (e.g. end of life medical care). A power of attorney is either effective immediately or becomes effective at a future time, such as when the principal suffers from physical or mental incapacity. When the principal dies, the power of attorney is automatically revoked. An agent may be a family member, friend, or attorney. However, if a person has filed for bankruptcy or has an undischarged bankruptcy on his record, he cannot serve as an agent. Nor can the agent be an owner, operator, or employee of a nursing or extended-care facility where the principal is a resident.

Ordinary v. durable power of attorney. An ordinary power of attorney is created when the principal is mentally competent and capable of acting for him or herself but is unable to do so. It is valid as long as the principal is competent (meaning he or she is capable of making his or her own decisions and is not incapacitated), and it can start immediately or on a date in the future.

A durable power of attorney, also sometimes called an enduring power of attorney, must also be created when the principal is mentally competent. After it is created, it is valid whether or not the principal is competent (meaning it will remain in effect even if the principal becomes incapable of making his or her own decisions). Normally, a durable power of attorney form is used to protect a principal's affairs in the event of an unforeseen circumstance. However, it is sometimes used when the principal is still capable of making his or her own decisions but is otherwise unable to do so. For example, if a client is diagnosed with a long-term illness, then he may have a lot to handle on top of his usual day-to-day affairs. He can execute a durable power of attorney, effective immediately, to allow an attorney-in-fact to make decisions for him while he focuses on his health.

Drafting a power of attorney. To protect all parties involved, most states require this document to be drafted by a professional attorney with an active license to practice law. When a power of attorney document is drafted, the attorney performing this duty is responsible for ensuring the contents are accurate to the best of his or her knowledge.

This is in contrast to a notary's role in the process. When a document is notarized, the notary public does not attest to the contents of the document; instead, he or she confirms the document was signed by the said individual in the notary's physical presence.

Notarizing a power of attorney. The laws vary from state to state as to what is required to properly notarize a power of attorney. Some states only require the principal's signature to be notarized, while others require either the principal's or a witness's signature (or both) to be notarized. It is best to familiarize yourself with your respective state's laws regarding notarization of this document.

Remember that if a notary is either the principal or the attorney-in- fact, then he or she is generally prohibited from notarizing the document. Notarizing a document in this case would be a direct conflict of interest, and most states explicitly prohibit this type of behavior.

Susan Jimenez is a Contributing Writer with the American Association of Notaries

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