Handling an Attorney-in-Fact Notarization

A power of attorney is a legally binding document that grants a specified person, called an attorney-in-fact, power over someone else's 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 and granting the power of attorney to another person, and the agent (sometimes called attorney-in-fact), who is the person given the power to act on behalf of the principal.

As a notary, you might be approached by an attorney-in-fact who asks you to notarize a document on behalf of a principal. The next few sections will explain how to proceed when this occurs.

The capacity in which an attorney-in-fact executes a document is generally not the concern of the notary. When a signer represents himself of herself to be an attorney-in-fact, or the president of a corporation, for example, the notary generally does not need to ask"and in fact may be prohibited by law from asking"to see proof of the stated capacity. Although some power of attorney documents can expire (and all expire on the death of the principal), the notary should not"unless specifically authorized by law"ask to see the original power of attorney document. The signer should simply be taken at his or her word. In fact, when a signer takes an acknowledgment in his capacity as an attorney-in-fact, he is essentially certifying himself to be authorized to act in that capacity.

If an attorney-in-fact is signing documents for a principal, your duties as a notary are to identify the attorney-in-fact, complete a notarial certificate, and make an entry in your record book. (Include the name of the principal and the attorney-in-fact in your record book and note that the document was signed under the authority of an attorney-in-fact.) Then perform the verbal part of the notarial act by asking the signer:

'Do you acknowledge that you have voluntarily executed this document as attorney-in-fact for Mary Doe, on her behalf?'

Note: an attorney-in-fact cannot take an oath and swear to facts on behalf of a principal.

In most states, it will be common for a notary to see a notarial certificate with a stated capacity such as "John Doe, as attorney-in-fact for Mary Doe." This is generally acceptable except where state law specifically prohibits it. California is an example of a state where a capacity, be it attorney-in-fact, president of a corporation, or even husband/wife, is not allowed to be listed within a notarial certificate. The laws which govern the requirements for notarial certificates vary greatly between states, so you should consult your own state's laws or commissioning authority for the most accurate information.

When it comes to how the signer actually signs the name, this should typically be determined by the party or entity who is requesting the document, such as the title agency or lender in a real estate transaction. There are two common methods for how the attorney-in-fact can sign a document:

'John Doe, as attorney-in-fact for Mary Doe'

or

'Mary Doe, by John Doe, her attorney-in-fact (or AIF)'

The first is the preferred method; but again, how the signer affixes his or her signature is not typically the concern of the notary, as long as the signature reasonably matches that which appears on the signer's government-issued identification"which should be in the signer's own name, not in the name of the principal.

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

The laws involving power of attorney documents can be complex, and some can be considered estate planning documents. If a person has unanswered questions about the effect of signing as an attorney-in-fact on behalf of a principal, you should postpone the notarization until he or she has answered the questions. As always, consult state law and use your best judgment as a notary public.

By Robert T. Koehler, a Contributing Writer with the American Association of Notaries, Inc.