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Fuzzy1955
Florida
36 Posts |
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Fuzzy1955
Florida
36 Posts |
 Posted - 01/14/2016 : 10:26:46 AM
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Sorry, don't know where the #8195
Fuzzy1955 |
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Fuzzy1955
Florida
36 Posts |
Posted - 01/14/2016 : 10:25:39 AM
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I called the NNA and they indicated that you cannot do this in Florida (did not ask about any other state).
Here is the Chapter and verse, literally!
Florida Statute Chapter 709 POWERS OF ATTORNEY AND SIMILAR INSTRUMENTS
PART II
POWERS OF ATTORNEY
(ss. 709.2101-709.2402)
709.2201 Authority of agent.—
(3) Notwithstanding the provisions of this section, an agent may not:
(b)#8195;Make any affidavit as to the personal knowledge of the principal;
So give this to your title company when asked - This cannot be done in Florida as shown in Chapter 709.2201 (3)(b).
Fuzzy1955 |
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LindaH
Florida
1754 Posts |
Posted - 03/12/2013 : 07:03:53 AM
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"It seems to my sieve-like memory that FL is the only state where the AIF's are ix-nayed from Affidavits - do you know if that's true, or do you know of other states that have the same restriction?"
No idea, Renee. But you know - it does make sense, and if put correctly to TC or SS it will make sense to them. How can a third person swear to something someone else knows?
I would guess that since we can use capacity in our certs, if we were to use jurats with AIF signing, any questions of wrongdoing would go to the AIF for abuse of power.
I remember our Paul was the one who told me no, the AIF cannot do it - and I do believe he said it here.
Linda
http://www.columbiacountynotary.webs.com |
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Renee
Michigan
549 Posts |
Posted - 03/12/2013 : 03:38:43 AM
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Linda - I don't know how I never caught that before, that it was the POA statutes & not the notarial ones, thanks for pointing it out to me. MI POA statutes don't have that restriction, which is probably why the MI POA's can be worded to include the authority to do that.
However, wouldn't the fact that it is NOT a notarial restriction, but a POA/AIF restriction, put the onus on the AIF and not the notary?
I know you know how my brain works (or doesn't!) - I'm just thinking, the notary doesn't need to even see the POA, we notarize for an AIF based on the assumption that they indeed HAVE the power they represent they have. It seems a greater leap (and UPL) to take it any further than that (into the realm of 'an AIF can't do that').
I think this differs a bit from Jeremy's line of thinking - my line of thinking is strictly that the AIF has the duty to adhere to the restrictions placed on them. The notary has the duty to ID the person before them (AIF), administer the oath, and ASSUME the AIF indeed has the powers they represent that they have. The same would be true if they were a Trustee (we don't read the Trusts), or head of a Corporation (we don't review the Letters of Incorporation), etc.
It seems to my sieve-like memory that FL is the only state where the AIF's are ix-nayed from Affidavits - do you know if that's true, or do you know of other states that have the same restriction? |
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edelske
New York
815 Posts |
Posted - 03/11/2013 : 7:59:22 PM
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IMHO - Only the proven name of the person you gave the oath, the person who presented their ID. B can sign as "A by B her AIF" - but only "B" is physically present with you.
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
Edited by - edelske on 03/11/2013 8:21:13 PM |
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MrEdinCa
8 Posts |
Posted - 03/11/2013 : 5:34:32 PM
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I am a bit confused regarding what has been stated in the posts on this issue & am writing to ask for clarification, mostly because I almost had this situation today but the individual was able to appear before me, so his wife did not need to sign as attorney in fact.
My question, to Jeremey (& to all) when/if an attorney in fact does swear to facts for a principle, what name goes into the Jurat? (I am in California). |
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LindaH
Florida
1754 Posts |
Posted - 03/11/2013 : 2:58:52 PM
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Our notary statutes are silent on it too - it's the POA statutes that state that an AIF may not take an oath or swear to statements on behalf ot he principal.
Linda
http://www.columbiacountynotary.webs.com |
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Renee
Michigan
549 Posts |
Posted - 03/11/2013 : 2:18:29 PM
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It is an interesting issue, and I've been on the other end of the situation a couple times. In my State of MI, the notarial statutes are silent on the matter, and I do thank them for that. In the POA's where I am/was named as AIF (3 of them), the language within the POA specifically states that I am given power to give sworn statements on behalf of the Principal (one assumes only facts known to the AIF). They also state that I am appointed to perform (not quoting but to the same effect) WHATEVER it takes to buy, sell or refinance real property.
It would really put a cramp in the style of title/lenders if the SOS forbade notaries from taking an oath from the AIF's. I don't know how FL pulls that off.
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LindaH
Florida
1754 Posts |
Posted - 03/11/2013 : 06:58:13 AM
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I'd rather be in harms way of telling the TC or SS that I can't do what they want than be in the path of what would happen if I proceeded with a jurat and it bit me later.
I do not think you're in danger of UPL if you're calling your hiring party and letting them know "I realize you need this, but I can't accommodate this request and here's why" and offering an alternative *within the law* to accomplish it.
JMO
Linda
http://www.columbiacountynotary.webs.com |
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Fuzzy1955
Florida
36 Posts |
Posted - 03/11/2013 : 05:17:23 AM
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Interesting discussion. I am in Florida as well Linda, the bulk of the affidavits in they typical package are Oaths. Are you finding resistance to changing the form to an Acknowledgment rather than an Oath? (and wouldn't this put you in harms way of recommending the type of notarization?)
Fuzzy1955 |
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LindaH
Florida
1754 Posts |
Posted - 02/10/2013 : 06:55:52 AM
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Well, my best *guess* would be:
1. It's logical that if Florida law precludes an AIF from taking an oath for a principal or swearing to facts known by the principal, then a jurat could not b e used.
2. Since there is no form jurat for an AIF or ANYONE in a representative capacity, it can be deduced that the notary cannot use a jurat for that type of notarization and that an acknowledgement is the only form of notarization available to the signer in a representative capacity.
Point is, the AIF would never BE taking an oath unless for himself/herself, so any signature on behalf of the principal, as AIF, can only acknowledged.
Linda
http://www.columbiacountynotary.webs.com |
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edelske
New York
815 Posts |
Posted - 02/09/2013 : 9:17:45 PM
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Linda,
Re: And one of the prohibitions is that an attorney-in-fact cannot swear to the truth of facts known to the principal.
How can the Florida notary be expected to enforce this? Do you put the AIF's feet in the fire? Inject them with truth drugs? There is no possible way for you to know what is "in their head". Of course you can ask them and take what they say as gospel. But that would require you to read the document and question the AIF about each fact stated in the document. I would take this as the responsibility of the AIF to be within the law; and not an enforcement burden for the notary.
Taken a step further (or is it farther? (grin)) - an AIF refi signing. How can that be done in Florida? When the AIF takes the oath they probably know little if anything about the transaction. They are just there to fill in the blanks.
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
Edited by - edelske on 02/09/2013 10:12:28 PM |
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LindaH
Florida
1754 Posts |
Posted - 02/08/2013 : 1:40:32 PM
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In FL, and that's the only state I can speak to..
Florida law regarding Powers of Attorney address the duties and responsibilities of the attorney-in-fact; the law also addresses the prohibitions. And one of the prohibitions is that an attorney-in-fact cannot swear to the truth of facts known to the principal.
In our notary handbook, we have sample form certificates - for individuals there are sample acks & jurats; there are also forms to be used for corporate reps, personal reps (trustees) and attorneys-in-fact. It is interesting to note that the sample forms for corporate reps, personal reps, and AIFs are all acknowledgements. There ARE no sample jurats for anyone signing in a capacity.
I remember in CT anyone in any type of representative capacity could not take an oath on behalf of the principal. I believe it's the same in FL.
JMO
Linda
http://www.columbiacountynotary.webs.com |
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edelske
New York
815 Posts |
Posted - 02/08/2013 : 12:49:47 PM
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I agree with you Jeremy.
Only the name of the attorney is on the notarization - "before me appeared Fred Lawyer.....".
He can sign as "Minnie Mouse by Fred Lawyer her attorney in fact".
At least in New York State - it is important that ONLY the name of the person physically present and taking the oath be mentioned in the notary section.
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
Edited by - edelske on 02/08/2013 12:50:38 PM |
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jbelmont
California
3106 Posts |
Posted - 02/06/2013 : 10:51:54 PM
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A notary called me and asked me a question today.
She said that someone asked her to notarize a Jurat for an attorney in fact signing on behalf of a principal. She thought it was illegal because -- the attorney in fact couldn't swear on behalf of the principal.
I argue that the attorney in fact would themselves be swearing -- and for the benefit of the grantor, and in the capacity of attorney in fact -- which is different than swearing as a substitute for someone else.
Additionally, I argue that the notary legally can not make recommendations about what type of notarization to do. So, if someone wants a Jurat for an attorney in fact to sign -- let them do it if it is not illegal to do so. Also, if someone wants a Jurat for a Power of Attorney document -- unusual, and probably not acceptable to the document custodian, but the notary must follow orders that are within the parameters of the law.
Interesting issue!
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Dear Signing Agents,
Attorney in fact signing Jurat?
Be the first person to vote!