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Powers of Attorney


I work in a healthcare organization, and sometimes family members need to get a power of attorney signed while the patient is in the hospital. Often times the patient is not able to make decisions due to his or her medical status. What is the notary's role in assuring that a signer is executing the power of attorney in his or her best judgment?

A document signer must possess a minimum degree of mental capability to understand the nature and intent of the execution and notarization of a document. The primary purpose of a notary public is to ensure that a disinterested party has admonished the signer as to the importance of such a document and that the signer has declared that his identity, his signature, and his reasons for signing such an instrument are genuine. The duties of a notary public are restricted only to the execution of proper notarial procedures.

May a notary notarize the signature of person who is in a mental institution on a power of attorney?

Most states do not define or provide guidelines for a notary public to assess competence or willingness. A signer must possess the minimum degree of mental capability necessary to understand the nature and intent of the execution and notarization of the document. If the incapacitated signer no longer understands the nature and effect of the signing and notarization of the power of attorney, the notary must decline the notarization. Some states prohibit notaries from notarizing the signature of a signer who is in a mental institution. Check your notary laws before proceeding in such a situation or consult with an attorney for legal advice.

Can I notarize a power of attorney without the signature of an incapacitated parent who is unable to understand and sign her own power of attorney?

If the incapacitated parent no longer understands the nature and effect of the signing and notarization of the power of attorney, the notary must decline the notarization of said document. Failure to execute proper notarial procedures may subject the notary public to civil and criminal liability.

Can a notary notarize a power of attorney that bears a future date?

No. A signer cannot acknowledge to the notary public that he signed the document in the future. The signer could have previously signed the power of attorney, or the execution of the POA could have taken place in the presence of the notary public; but the signing of a POA can never take place in the future. In this instance, the notary public must decline the notarization of the power of attorney.