Power of Attorney (POA)

It happens to almost every notary eventually:  the individual personally present for your performance of a signature notarial act is not the named principal (document signer).  Instead, the present person is signing under a power of attorney granted by the principal.

“Power of attorney” is a very familiar term, and most people have a general idea of what it means.  But for a simple, concise and fully accurate explanation of “power of attorney,” here’s what the American Bar Association has to say:

“A power of attorney gives one or more persons the power to act on your behalf as your agent. The power may be limited to a particular activity, such as closing the sale of your home, or be general in its application. The power may give temporary or permanent authority to act on your behalf. The power may take effect immediately, or only upon the occurrence of a future event, [such as] a determination that you are unable to act for yourself due to mental or physical disability…. a power of attorney may be revoked, but most states require written notice of revocation to the person [who was given the power of attorney].”

Clearly, powers of attorney can be flexible to fit the needs of a “principal”—the person who grants their power of attorney to another.  But typically, other people and entities also have a stake in—or are affected by—a document signing involving a power of attorney.  They are:

• The “attorney-in-fact” (also called the “agent”):  this is the person who received power of attorney from another person to perform specific functions such as signing legally binding documents.

• The “relying party” or “relying parties”:  the individual(s) or entity/entities with a stake or interest in a transaction, particularly those involving one or more signed documents.  Relying parties know to expect that some document transactions will be executed (signed) by an attorney-in-fact on behalf of a principal.  By law of most all U.S. states (the Uniform Power of Attorney Act), relying parties must accept a power of attorney, or at least request additional documentary proof that the attorney-in-fact actually has the power they claim they were given.  

Of course, a very important party affected by America’s widespread standardization of POA laws is the officiating notary public.  Throughout the U.S., state laws specify how a notary public proceeds when the personally present individual has or will sign a document “in a representative capacity,” which includes signing under a power of attorney.  

More than half of America’s states have enacted all or parts of the Revised Uniform Law on Notarial Acts, which (1) broadly defines signing in a “representative capacity,” but (2) also gives a notary the discretion to refuse notarizing, including when they are not satisfied that the present individual has the capacity or authority to sign in a representative capacity.  

That said, all notaries should carefully review their state’s notary laws and administrative rules for any provisions that affect not only notarizing in a representative capacity, but also the circumstances under which a notary can or must refuse to notarize.  These important requirements and prohibitions might be located in any section of a notary’s laws and administrative rules, so be thorough when searching for them. (Don’t assume that you’ll find them in what seems to you to be the most logical place.)

Here are the key steps of notarizing when the present person is signing in representative capacity; they are fundamentally the same as when you notarize for the named principal:

1)  Require the present person to be personally known or to produce identification that complies with your state’s ID requirements for principal (named) signers.

2)  Observe whether you believe this person is acting of their own free will, with an apparent understanding of what is occurring.

3)  Examine the document presented for the notarial act… observe which notarial act is indicated by the wording of the notarial certificate (it must be one authorized to be performed in your state).  

4)  Confirm that the notarial certificate language substantially complies with (reflects) the certificate language specified in your state’s notary laws and any applicable regulations for an individual signing in a representative capacity.

5)  Perform the verbal ceremony that is suitable for the notarial act (“Do you acknowledge signing this document willingly, for the purposes stated in it”; “Do you swear or affirm that the contents of this document are true”). Remember that a signature witnessing (if authorized in your states) requires no verbal ceremony.

6)  Complete the notarial certificate, making sure to affix your notary stamp/seal and official signature.

7)  Create a notary recordbook (journal) entry and have the present person sign the entry. Be sure that your entry indicates that the person signed in a representative capacity.

In addition, you should regularly visit the website of your state’s notary commissioning officer (in most states, that’s the Secretary of State) for any and all materials published there as aids to notarization. If you find procedures there for notarizing in a representative capacity, follow them. Consider keeping your own log or record of when you accessed this information, and what subject matter you researched.

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