Last week, we shared a real-life scenario in which a Notary was asked by a customer to notarize two signatures. The customer claimed to have power of attorney for his wife and needed to sign a document twice — once for himself, and a second time on his wife’s behalf — and have both signatures notarized. However, when the document was presented, the Notary saw it was a divorce settlement between the customer and his wife.
What our Notaries said
Many Notaries expressed concerns about the situation because the customer was seeking to sign for both himself and his wife on a divorce document and raised concerns about possible fraud.
“I would be uncomfortable performing this type of notarization,” said Mildred Cooke. “Without being able to speak to the wife for verification, a divorce settlement seems self-serving on the husband’s behalf.”
“I would not proceed,” said Notary Diane Hilbun. “I feel that him signing for his wife would be potential forgery.”
Some Notaries said they would refuse and direct the customer take his document to be notarized at his attorney’s office instead. Others were willing to notarize if the husband showed them proof of his power of attorney, or if they could speak to the wife face to face first to confirm her wishes.
“If the husband can produce a notarized, recorded power of attorney which grants him the power to act for his spouse in any and all situations, then I would feel comfortable notarizing the document for both parties,” Linda Mansfield said. “However, if such a document cannot be presented, I would courteously decline.”
Rod Davison said he would notarize the husband first’s signature — but not the second signature on behalf of the customer’s wife.
But some Notaries felt that refusing would be an inappropriate legal judgment about the customer’s document and power of attorney status. “The validity of the divorce document or the POA is not my concern,” said California Notary Katie Perry. “In California, we are not required to verify the status of the attorney in fact.”
“Sometimes it is difficult for us as Notaries Public to remember that the content of the document is not our problem,” said Lynn Gidlow. “If there is a legal problem with the document, it would need to be settled in a court of law.”
Standards of Notary practice for a power of attorney
This is a challenging situation, and how you handle it depends on where you are commissioned. Different states have different laws regarding powers of attorney and signers acting as attorney in fact for another individual.
In Hawaii, Idaho or Minnesota, the husband would be required to present the Notary with proof of his authority to sign on his wife’s behalf. In these states, the Notary would have a basis for refusal if the husband could not provide the required proof of power of attorney.
However, Kansas, North Carolina and California — where the actual situation took place — do not require Notaries to verify a signer’s representative status. The California Notary who received this request therefore couldn’t refuse the notarization on the grounds that the signer lacked documentation for the power of attorney. A Notary does not have the training or authority to make a legal judgment whether the divorce document is valid or not — that would have to be determined by a court of law. Unless another clear-cut reason for refusal presented itself, a California Notary would have a duty to proceed with the notarization (see Government Code Section 8205 – “It is the duty of a notary public, when requested… to take the acknowledgment or proof… of other instruments and writing executed by any person…”).
However, certain states provide more leeway for a refusal. Texas Notaries may refuse a request if the Notary has reason to believe the document will be used for illegal purposes. In states that have enacted the Revised Uniform Law On Notarial Acts (RULONA) such as Colorado, Montana, Pennsylvania, Oregon and Washington, Notaries are permitted to refuse a notarization request for any reason, as long as the refusal does not violate the law.
Whether a Notary decides to perform or refuse the notarization in this situation, it would be a good practice to document the reason why the decision was made, along with any statutory citation or reference the Notary’s choice was based on, in the Notary’s journal. That way, if the Notary’s action is challenged at a later date, the Notary has evidence showing that the Notary exercised reasonable care in following state law.
David Thun is the Assistant Managing Editor with the National Notary Association.
Related Articles:
When to say ‘no’ … and when refusing a notarization is not allowed
Notary FAQs: All about powers of attorney