The General Power of Attorney for India and the Role of Witnesses

Some documents have the legal requirement that the signer’s signature be witnessed.  This is primarily to prevent forgery.  The witnessing requirement may be in place or in addition to a notarization requirement.

One of the most common documents that require both witnessing and notarization is the General Power of Attorney for use in India.
The purpose of this Power of Attorney is to grant power to an resident of India to act as an agent for a purchase or sale of property on behalf of a resident in the United States.
Unfortunately, many signers misunderstand the purpose of the witnesses.  They mistakenly believe that the purpose of the witnesses is to validate the content of the document or to verify that the Principal (the signer) understands the legal document they are signing.  Acting on that misapprehension, the signer often requests the witnesses sign before the signer takes the document to the notary to be signed and notarized.
The primary duty of the witness is to watch the signer physically sign the document to prevent forgery.  If the witnesses sign before the signer does, they have failed in their primary duty.

Sometimes a witness also certifies they have personal knowledge of the signer.  For example, a Canadian Transfer of Land document requires the witness to personally know the signer and be willing to certify that the individual who signed the document was indeed the person named in the document.

Who can be a witness?

The witness should be an adult at least 18 years old and impartial. The witness should neither be named in the document, nor benefit financially from its signing,  The witness should be of sound mind. The best witnesses are those that know the signer such as friends, neighbors, or co-workers.

What other documents are witnessed?

Mortgages, Power of Attorneys, Last Will and Testaments, Deeds, Advance Health Care Directives and foreign documents related to property transfer.

What if the document needs to be witnessed and notarized?

Ideally, the signer, witnesses and notary would meet at the same time.  When done that way, the witnessing and notarization occur in one step.  Mobile notary services are usually the best way to accommodate all parties in this situation.

If that is not possible, this alternative is permissible in CA:

CA law allows a document that requires an Acknowledgment notarization (like most Power of Attorneys) to be signed in advance and then presented to a notary for notarization.  Provided the signer appears before the notary, furnishes satisfactory evidence of their identity and “acknowledges” that they signed the document prior to coming before the notary, the notary can perform an Acknowledgment notarization.

Based on that scenario the following steps would apply:

  • The Principal (signer) signs the Power of Attorney while the witnesses watch (which satisfies the witness requirement)
  • The witnesses sign that they observed the signature (It is recommended that they print their name below their signature)
  • The signer then takes the signed and witnessed  POA to the notary
  • The signer provides satisfactory evidence of his identity and acknowledges to the notary that he signed it prior to appearing before the notary
  • The notary performs an acknowledgment notarization

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Notary Challenges—How to notarize a sleeping signer

Most mobile notarizations are prompted by a signer that is unable to come to the notary due to ambulatory limitations.  They may be ill and bedridden or just frail and elderly.  They may still live at home or be a patient in a residential care home or the hospital.  These notarizations can be problematic.  Thorough screening when scheduling is important to prevent wasted travel.  Most of the time, it’s a family member that makes the call to the notary to schedule.  Some questions to ask:

  • What document will be notarized?  Is it an Advanced Healthcare Directive?  This is important because if the patient is in a skilled nursing facility an ombudsman will need to be present when the signer executes the document.
  • Does the signer have valid photo ID?  Many of the elderly let their driver license lapse once they stop driving and do not replace it with a DMV Senior Citizen ID card.  If they do not have valid ID, two credible witnesses (unrelated to the document) would be necessary to identify the signer.
  • Do they have the physical ability to sign legibly?  Weakness and injury can affect the signer’s ability to sign in a recognizable fashion.  Sometimes the signer can only make a mark.  If that is the case, two witnesses (unrelated to the document) would need to be available to watch the signer execute the mark.
  • Do they have an awareness and willingness to sign the document?
    If the signer lacks the capacity to understand what they are signing, the notarization cannot proceed.
  • Are they taking medications that might impair their ability to understand what they are signing?  Are they taking narcotics or sedatives?  If they are, it is important that they do not take the medications prior to the notary meeting.

Despite the best made plans and attempts to pre-screen the signer, things don’t always go as planned.

I was scheduled by the spouse to meet with her bedridden husband, a resident of a residential care home, to notarize a General Durable Power of Attorney.  Despite careful screening, the first words out of her mouth after the introduction were, “They gave him something and he’s sleeping.  I’ll need to wake him up.”

Needless to say, the signing was ajourned.

The best laid plans of mice and notaries often go awry, despite best intentions.

©2017 Totally Notary All Rights Reserved

How to Self-Attest a Document

When a copy of a document is requested by a government agency or other entity, it is often specified as Certified, Notarized or Original. Sometimes it is specified as Self-Attested.

Self-Attestation allows the owner of the document to certify that the photocopy of their original document is a true copy by signing it. Self-attestation does not require an affidavit from a notary.

Per the Consulate General of India, San Francisco:
“Self attestation means- signing the photocopy of the required documents stating as “true copy of the original”. In case of minors, documents should be attested by either of the parent.”

The steps of Self-Attestation:

  • Make a photocopy of the original document requested
  • Write the statement on the photocopy “True copy of the original”
  • Sign below the statement
  • Submit the self-attested photocopy with the application
  • Retain the original

©2017 Totally Notary All Rights Reserved

 

 

 

What’s the difference between a Certified document vs a Notarized document?

When a copy of a document is requested by a government agency or other entity, it is often specified as Certified, Notarized or Original.
In California, the notary is prohibited from “Certifying” documents with the exception of Power of Attorney documents and their own journal entries.  Some other states do allow the notary to do so, which can cause confusion if the requesting agency is located outside California.

Certified documents:
Certified documents (or certified copies) are often requested for important documents such as vital records.  Examples of vital records are birth certificates, marriage certificates, divorce decrees and death certificates.  The original vital record remains on file with the jurisdictional agency (usually the county).  As custodians of the original document, only the agency that issued it can certify the copy of it.  Contrary to popular belief, one’s birth certificate is not an original document, it is a certified copy of the information on file at the county.

In California, if a customer asks a notary to “Notarize” their birth certificate or any other vital record, the notary should refer them to the county where it is filed so they may apply for a certified copy.

Notarized documents:
Notarized documents are documents where the identity and signature of the signer has been verified and witnessed by a notary at the time of signing.  The notary’s signature and stamp will usually be present on the document as proof of the notarization.

Original documents:
Original is simply that.  It is the original document you received from the issuing agency.  It is not a copy or duplicate.  An example would be your current passport.  When applying for a passport renewal, the original is generally sent back with the renewal application.

It is routine for foreign governments to require Certified or Notarized copies of original documents when processing passport, visa and OCI renewals and applications.  CA prohibits the notary from certifying that the photocopy is a true and correct reproduction of the original document, but the custodian (owner) of the document may and their statement can be notarized.

Per the National Notary Association:

“In states where Notaries are prohibited from certifying copies of documents, there is an alternative procedure called a copy certification by document custodian. This procedure allows a person in permanent possession of an original document to sign a written declaration that a copy of it is identical to the original, and take an oath or affirmation before the Notary.

The custodian’s signature is then notarized on the written declaration using jurat wording. In essence, a copy certification by document custodian is an affidavit signed and sworn to by the custodian with a jurat as the notarization. Remember, the custodian, not the Notary, guarantees that the copy is an authentic reproduction of the original.”

Once the customer has written their statement on the photocopy, the notary will place them under oath and the customer will sign their statement.  The notary will then execute a jurat notarization.  If there is room on the document and the notary has notarial verbiage stamps, they may notarize directly on the document.  If there is no room to do so, the notary will attach a jurat notary certificate.

©2017 Totally Notary All Rights Reserved

Volkswagen’s Individual Release of Claims notarization rejected?

On September 18, 2015, the United States Environmental Protection Agency (EPA) issued a notice of violation of the Clean Air Act to Volkswagen after it was determined that Volkswagen had intentionally programmed TDI diesel engines to activate emission controls during smog tests, which caused the vehicles to meet US standards during the test, when in reality they were releasing 40x more NOx (Nitrogen Oxide) during real-time driving.
Volkswagen stated that 11 million vehicles are affected worldwide and 500,000 are in the United States.

The Volkswagen/Audi Emissions settlement program offers owners of affected vehicles two options: modification or buyback.  The owner submits their selection with an Acceptance of Offer Letter.

The Acceptance of Offer Letter contains an Individual Release of Claims form that requires the notarized signatures of all title owners.  Once signed and notarized, the claimant sends the documents back to Volkswagen using the Online Claims Portal, mail or fax.  If mailing, the documents go to Michigan.

Many California volkswagen owners have reported that the notary certificate in their Individual Release of Claims form was rejected by Volkswagen.

The form’s certificate contains the following format:

WITNESS:

State of_________________________________ )
XXXXXXXXXXXXXXXXXXXXXXXXXx) SS
County of ______________________________ )

I, ______________________________________, a Notary Public in and for said County in the State aforesaid, do hereby certify that __________________________________, who is personally known to me and the same person whose name is subscribed to the foregoing instrument appeared before me this day in person and acknowledged that they signed, sealed, and delivered the same instrument as their free and voluntary act for the uses and purposes therein set forth.

My seal:                                              __________________________________________
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXNOTARY PUBLIC

CA law allows a notary to use an out of state notary certificate if the document is going out of state and it does not violate CA state law. Volkswagen’s Individual Release of Claims document appears destined for Michigan, so in theory a notary might assume they could utilize the notary certificate it contains.  The sticking point is the verbiage.  This certificate states that the notary personally knows the signer.  California is the only state that prohibits a notary from using personal knowledge as a means of identifying a signer.
Per the 2016 California Notary Handbook:
“Identity is established if the notary public is presented with satisfactory evidence of the signer’s identity. (Civil Code section 1185(a)) Satisfactory Evidence – “Satisfactory Evidence” means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the individual is not the individual he or she claims to be and (A) identification documents or (B) the oath of a single credible witness or (C) the oaths of two credible witnesses under penalty of perjury, as specified below:the notary must rely on government issued identification documents to establish satisfactory evidence as to use satisfactory evidence supported by government issued identification documents.”

To be compliant with California law and to prevent rejection while processing this form in California, the notary is strongly urged to attach a CA all-purpose acknowledgment in lieu of executing the enclosed certificate.  It is also recommended to write or stamp “See Attached” in the form’s notary section, which references the loose certificate that is stapled behind it.

©2016 Totally Notary All Rights Reserved

 

 

What is an Apostille?

An “apostille” is a form of authentication issued to a public document that has been signed for use in another country.
Public documents, such as  birth certificates, marriage certificates, judgments, corporate records, patents and notarized acknowledgments are frequently sent for use abroad and prior to 1961, went through a slow and costly process called legalisation.  Legalisation involves authentication in the originating country as well as the Embassy or Consulate of the destination country.

To streamline the process, a treaty, The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents was drafted on October 5, 1961 at the Hague Conference on Private International Law.

It allows participating countries to designate Competent Authorities to authenticate public documents in the country of origin and eliminates the need for additional authentication provided the document is for use in another participating country.

The country of destination determines if the document is authenticated with an apostille or requires certification through legalisation.  A list of countries that accept apostille is here.

As a participating country, the United States has three levels of Competent Authority;  Federal, U.S. Courts, and State.
The origin of the document determines which level authenticates it.

Federal authentications are conducted through the U.S. Department of State Authentications office.  This agency authenticates Federal executive branch documents such as FBI background checks.

U.S. Court  authentications  can be conducted by the Clerks and Deputy Clerks of the Federal Courts, or as an alternative, the U.S. Department of Justice can authenticate the seal of the Federal court and then the U.S. Department of State Authentications Office will place an apostille over that seal.

State authentication is most often conducted by the Secretary of State office, as it is in California.
There are two regional offices for the California Secretary of State:  Sacramento and Los Angeles.

The Secretary of State authenticates signatures only on documents issued in the State of California signed by a notary public or the following public officials and their deputies:

  • County Clerks or Recorders
  • Court Administrators of the Superior Court
  • Executive Clerks of the Superior Court
  • Officers whose authority is not limited to any particular county
  • Executive Officers of the Superior Court
  • Judges of the Superior Court
  • State Officials

The process of obtaining an apostille is relatively simple.  It can be done by mail or in person.
If by mail, the original document in question is submitted to the appropriate competent authority with applicable fees and return postage, and after authentication, the document and apostille certificate is returned to the sender.
Walk-in service is available at the Sacramento and Los Angeles offices Monday – Friday from 8:00am – 4:30pm on a first come, first serve basis.

Do you have urgent need for an apostille?
Totally Notary now provides expedited apostille document service.  Call for details!

©2015 Totally Notary All Rights Reserved

Witnesses can complicate a simple notarization

Most documents don’t require witnesses or notarization, but occasionally a document will require both.  It can complicate matters because usually the witnesses, notary and signer must be together when the document is signed.

Who can be a witness?  Any legal adult that does not have financial interest in the document being signed.  The most common source for witnesses are neighbors, co-workers and friends.

The document may be a Will or Advanced Health Care Directive related to a Living Trust or it may be a real estate document that transfers real property located in the state of Connecticut, Florida, Georgia, Louisiana or South Carolina.  Some common documents that would require a witness are Grant Deeds, Warranty Deeds, Quit Claim Deeds, Mortgages, and Deeds of Trust.

State Requirements:
Connecticut:
Two witnesses required (one witness may be the notary)
Florida: Two witnesses required (one witness may be the notary)
Georgia: One witness required (cannot be the notary)
Louisiana: Two witnesses required (neither can be the notary)
South Carolina: Two witnesses required (one witness may be the notary)

Some foreign documents require witnesses in addition to the notarization and often the signers don’t understand that the witnessing and notarization must occur at the same time.
If the document requires an Acknowledgment notarization and the signer signs prior to appearing before the notary, the notarization can still proceed provided the signer acknowledge they signed the document.  If, however, the document requires a Jurat notarization, the signer will need to resign the document once they are before the notary, after the notary administers an oath.

For these reasons it’s generally recommended that the signer wait to sign until they’re before the notary.  While it certainly can be complicated to coordinate signers, witnesses and a notary, utilizing the services of a mobile notary who can travel to the signer’s location can simplify matters and is often the best solution in these situations.

©2015 Totally Notary All Rights Reserved

To Fingerprint or Not To Fingerprint…

I’ve executed over 17, 000 notarizations since I became a notary in 2012 and I established a policy from the beginning to obtain a thumbprint for every notarization, regardless the nature of the document.  It’s a great fraud deterrent and positively identifies the signer.  From my perspective, it provides protection for both the signer and the notary.
I have had only one individual refuse to submit a thumbprint.

In CA, if the document affects the transfer of real property or is a Power of Attorney document, the notary is required to obtain a thumbprint.
It isn’t required for other documents, but is recommended by the National Notary Association:

“It is a strong deterrent to forgery, as it represents absolute proof of the signer’s identity and proves the signer was present before the Notary.”

In 1996, CA passed the following law, California Government Code 8206 (a)(2)(G):
“If the document to be notarized is a deed, quitclaim deed, deed of trust, or other document affecting real property, or a power of attorney document, the notary public shall require the party signing the document to place his or her right thumbprint in the journal. If the right thumbprint is not available, then the notary shall have the party use his or her left thumb, or any available finger and shall so indicate in the journal. If the party signing the document is physically unable to provide a thumbprint or fingerprint, the notary shall so indicate in the journal and shall also provide an explanation of that physical condition. This paragraph shall not apply to a trustee’s deed resulting from a decree of foreclosure or a nonjudicial foreclosure pursuant to Section 2924 of the Civil Code, nor to a deed of reconveyance”

In the case of my reluctant thumbprint client, the document in question was not a deed or POA.  After I diligently recorded his full name, address, driver license number and date of birth in my journal, he expressed he was uncomfortable with giving his thumbprint, citing concerns of identity theft.

The client had complied with all the laws that govern notarization and his refusal to give a thumprint was not legal cause to refuse him service.  If his document had required it, however, I would have been unable to proceed.

Because I feel it demonstrates due diligence on my part and provides positive proof of the signer’s identity, which is a powerful fraud deterrent, I will continue to request thumbprints when I perform notarizations.  I’m confident that the majority of my clients will comply.

 ©2015 Totally Notary All Rights Reserved

The I-9 and what a CA notary should know

The I-9 (Employment Eligibility Verification Form)  has long been a source of confusion among CA notaries and a source of frustration for those new hires looking for someone to validate it.
Issued by the Department of Homeland Security’s U.S. Citizenship and Immigration Services, the purpose of the I-9 is to document the identity and employment authorization of new employees.

Notaries were first exposed to it when remote hires asked them to complete it for their distant HR departments.

According to the USCIS Handbook for Employers, employers “may designate someone to fill out Forms I-9 for you, such as a personnel officer, foreman, agent or anyone else acting on your behalf, such as a notary public“.  Based on that advice, the HR departments were instructing the new employee to find a notary public to complete it for them.

Most notaries didn’t know how to approach the I-9 because it doesn’t require notarization.  Some postal stores that employ notaries, like the UPS store, instructed their employees not to touch it.  It left the new hire out in the cold, frustrated by their inability to find a notary willing to assist them.

Prior to August 2014, a CA notary could lawfully assist an HR department in the capacity of an “authorized representative” and could complete the I-9 for a new employee.  The notary would examine the identification documents that the new employee presented and complete the form, not as a notary, but as an authorized representative of the employer.  There was no notarization involved.

In August 2014, Debra Bowen, the then current California Secretary of State and responsible for regulating CA notaries, declared that the I-9 was an immigration form, and as such, should only be completed by a licensed and bonded Immigration Consultant.  Only if the notary was also a licensed and bonded Immigration Consultant, could they complete it.

Per the National Notary Association:
UPDATE 8-25-14: Restrictions For California Notaries
“In August 2014, the California Secretary of State’s Notary Public & Special Filings Section clarified with the NNA that California Notaries who are not qualified and bonded as immigration consultants under the Business and Professions Code Sections 22440-22449, may not complete or make the certification on Form I-9, even in a non-notarial capacity. The Secretary’s office considers Form I-9 to be an immigration form. Any California Notary who is not an immigration consultant violates Government Code Section 8223(c).”

Immigration Consultants are few and far between.
When one searches for a Immigration Consultant on the CA Secretary of State Immigration Consultant Surety Bond website, you’ll see that many have lost their licenses and show the status of “Cease and Desist”.  That status occurs when “the immigration consultant failed to comply with the provisions governing the filing and maintenance of immigration consultant bonds or has not satisfactorily passed the background check.”

As a California notary that performs real estate closings and must maintain vigorous annual background screenings to stay compliant with loan signing certifications, I feel that I and other notary signing agents are often more qualified and meet higher background screening standards than that of Immigration Consultants.  I also feel that as notaries, we are in the business of examining identification documents and are uniquely qualified to complete the I-9  Employment Eligibility Verification Form.

It is my hope that now California has elected a new Secretary of State, Alex Padilla, the subject of I-9 verification will be revisited and hopefully, reconsidered.  Limiting I-9 verifications to Immigration Consultants places an unnecessary burden on the new employee to locate a qualified individual when notaries public are widely available and accessible.
Six months after the Secretary of State’s determination, I continue to receive calls about the I-9 and would welcome the opportunity to resume that service for my clients.

©2015 Totally Notary All Rights Reserved

Notary Challenges — The Elderly, Skilled Nursing Facilities and Ombudsman

Notarizing for the elderly can present a unique set of challenges.

  • Their identification can be expired.
    -If so, two impartial credible witnesses may be required
  • They can be physically weak from illness or injury which makes signing a document difficult
    -If so, they may need to “Sign by Mark”, which also requires two impartial witnesses to watch and sign their names as witness.
  • They may be taking medication that causes impairment
    -In this case, the notarization must be postponed until the signer is aware of what they are signing
  • They may be a patient in a Skilled Nursing Facility (SNF)
    -If the document is an Advanced Health Care Directive (AHCD), an ombudsman will be required to witness the signing of the document and the ombudsman may require an appointment.
  • They may be incapacitated or unwilling to sign
    -The signer must be willing and aware or the notarization cannot proceed.

In many cases, a family member calls to schedule the appointment for mobile services.  Their elderly relative may still be at home, but more often, they are either a resident in an assisted living senior facility or a patient receiving short or long-term care in a medical facility.  They may be in a local hospital or residing in a long-term convalescent facility, or they may be receiving treatment in a skilled nursing facility (SNF).   A skilled nursing facility is a medical facility that is licensed, regulated and inspected by the Department of Health Services and  provides 24hr medical care.

Most of the time, I am called to notarize Power of Attorney documents or some type of proof of life document so the senior citizen may continue to received their pension or insurance benefits. If the document is an Advanced Health Care Directive (AHCD), however,  and the signer is a patient in a skilled nursing facility, there are special witness requirements.
In California, a patient advocate, called an ombudsman, needs to be present and serves as an official witness to the signing of the document.  If the Advanced Health Care Directive is signed without an ombudsman witnessing and certifying the execution, the document is not effective and will be invalid until resigned in front of an ombudsman.
Per Probate Code Section 4675:
(a) If an individual is a patient in a skilled nursing facility when a written advance health care directive is executed, the advance directive is not effective unless a patient advocate or ombudsman, as may be designated by the Department of Aging for this  purpose pursuant to any other applicable provision of law, signs the advance directive as a witness, either as one of two witnesses or in addition to notarization. The patient advocate or ombudsman shall declare that he or she is serving as a witness as required by this subdivision. It is the intent of this subdivision to recognize that some patients in skilled nursing facilities are insulated from a voluntary decisionmaking role, by virtue of the custodial nature of their care, so as to require special assurance that they are capable of willfully and voluntarily executing an advance directive.
(b) A witness who is a patient advocate or ombudsman may rely on the representations of the administrators or staff of the skilled nursing facility, or of family members, as convincing evidence of the identity of the patient if the patient advocate or ombudsman believes that the representations provide a reasonable basis for determining the identity of the patient.

As a California notary public, I must follow a code of professional responsibility.  Not only am I responsible for establishing the signer’s identity, I am also required to determine their awareness of what they are signing and their willingness to do so.
Notarizing for elderly clients can be challenging, but with advanced screening and a little preparation, most notarizations can be completed successfully.

©2015 Totally Notary All Rights Reserved

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