The whole issue of the use of Powers of Attorney - as it pertains to notarizing sworn statements and also to real estate loan signings - is certainly full of gray areas. For any one opinion, an equal and opposite opinion can easily be had (from both lay people and attorneys). I have not seen (though it might exist) any state with statutes spelling anything out. All the state statutes I have read (and I've read more than I ever dreamed I could stay awake through) simply leave the issue void of clear definition, forcing us towards assumptions.
Statutes are written by attorneys, and I don't for a minute think that this void was unintentional.
If we go back to the facts that we know are solid, I think it becomes easier. The solid facts are:
- It takes a law degree to legally define, interpret or advise anyone of the law.
- I notarize signatures, not documents. A notarization on a document does NOT render the document itself ‘legal'.
- POA's (generally) do contain verbiage specifically stating that the Principle is providing the power to the AIF to make sworn statements of known fact - not that it's my jurisdiction to interpret that to be legal or not legal. The AIF has a fiduciary responsibility to the Principle, the onus is on them.
- The Affidavits typically involved in a RE transaction contain statements of fact that an AIF could reasonably know. I would not notarize an AIF swearing to something they couldn't reasonably or possibly know - such as a statement of facts regarding a murder witnessed by the Principle.
Minus a law degree, I am not qualified to make these determinations. I identify the signer, I ensure that they sign with appropriate representation of that identity (clearly as the AIF of the Principle), and my notarial cert will properly reflect that it was the AIF and NOT the Principle who swore under oath, who was identified, and who signed.
So - if I present a Name Affidavit for Jane Doe to John Doe, her AIF, and it contains a jurat, I explain what the document is requiring and if John Doe, AIF decides to swear under oath that the name variants presented are, indeed, statements of fact for Jane - I contend that:
- it is John/AIF's decision to make and his oath to provide I
- find these to be reasonable facts for the AIF to know
- It is the decision of the Lender, Title/Settlement Agent or other receiver to accept the Affidavit
- my only decision is to accept his affirmation under oath, witness his signature, and ensure my certificate properly reflects his identity.
- Should the document ever become a court issue, I am comfortable with my actions - and in my avoidance of UPL.
I have also had experience as an Attorney-in-Fact, in regards to a real estate transaction (sale of a home). The Owner's Affidavit was signed as AIF, and there were no questions regarding this - other than the need for this sworn statement to be signed, and the jurat to be completed. A quick round on Google will further illustrate that sworn statements are being given by AIF's in myriad industries as a matter of course. Whether or not there is a legal difference between a corporate Principle and an individual Principle is way beyond my scope.
Unless & until I can read a statute clearly defining the notarial duties regarding this, I refrain from making this my decision. I would be THRILLED to hear from anyone with a reference to a statute (from any jurisdiction, at least it would be a start) or even case law (which I promise not to interpret!) specific to this.
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