Being near so many military bases, and with so many of our troops being deployed abroad, I am getting more and more closings in which someone is signing as Power of Attorney. The person who has been given the authorization to sign for someone else is the 'attorney in fact'. The person on whose behalf they are signing the documents is the 'principal'.
Normally these pose no special problems. They just take a bit longer because of the manner in which the person has to sign the documents. Not only are they signing the person's name, there is specific wording that has to follow the signature. There are various ways in which the attorney in fact may sign.
Normally it is not up to the notary signing agent to decide how the attorney in fact is to sign. In most cases the lender will give specific instructions:
The attorney in fact may be required to sign an affidavit:
And the notary section will look like this:
The notary should also confirm that the attorney in fact does indeed have power of attorney. They should ask to see this document before conducting the signing. There are two types of power of attorney: general or specific.
If it is a general power of attorney, the attorney in fact is authorized to sign for the principal for all transactions. If it is a specific power of attorney, then there will be a specific purpose for which the attorney in fact can sign, and it will be outlined in the power of attorney document.
The notary signing agent may be instructed to collect the original power of attorney document. This is outlined in paragraph (c.) below:
This might not be a problem for the attorney in fact if they are using it primarily for this one transaction. But I had a closing a while back in which the attorney in fact needed the original because she used it on an almost daily basis. Her husband was in a nursing home. So I made a Certified Copy of it for her. Check your state notary laws regarding this option.
There is something else in those instructions above. Notice that it shows how the attorney in fact is supposed to sign. The one thing that caught my attention was the word 'SAMPLE' in paragraph 'c'. Normally the lender doesn't give a sample. The instructions are specific, as in the first example. And it isn't a variation of any wording I have ever used in a signing. I called the title company about it. My concern was that, I didn't want to have the documents rejected. The person at the title company told me that she really isn't clear about power of attorney signings, and she put that there as an example. After I told her how I normally have the attorney in fact sign, she told me to have the person sign the way I normally have them sign. So instead of having the person sign:
Jane E. Doe POA for John A. Doe,
I had her sign:
John A. Doe by Jane E. Doe, as his attorney in fact.
It's not that the title company's instructions were wrong. But in the absence of specific lender instructions, I didn't want to take any chances. So I requested that we use a more conventional way of signing, and increase the likelihood that it would be acceptable to the lender. Who knows? The lender may not have cared. I just didn't want to take any chances.
Since the attorney in fact has to sign so many documents, I prepare a signature line for them so that they can refer to it. I type it out using Word, and use a large font. I also show how the initials should be, since they also have to initial for the principal:
If there is a Jurat, and the principal is required to take an oath, keep in mind that the attorney in fact cannot take an oath on behalf of that person. You can only administer an oath to a person if they are in your presence.
Here is a sample acknowledgement:
The best thing to do, in all cases, is ensure that you get specific instructions from the lender. Or call the signing service and ask for instructions. There have been times when I called the signing service and they didn't return my call, or they couldn't be reached. In that case, use a way of signing that is widely acceptable. And refer to your state notary laws for how to prepare an acknowledgement.
Other resources you may want to refer to are the NNA (National Notary Association) book, Notary Home Study Course. You will find a lot of information on how to handle various notary procedures, including power of attorney.
Another book that you will want to have is the Notary Law Primer for your state. Also published by the NNA.
If you check the NNA website, you will also find information on how to conduct various types of signings.
Some advice to borrowers, if you are signing as power of attorney:
- Be prepared to spend a bit more time signing the documents than you normally would.
- Have a Certified Copy of your power of attorney document made. If you will be required to send it with the loan documents, and you need it for everyday matters, you will want to have a certified copy of it.
Be patient. Good luck.