Notarizing a legal document, such as a power of attorney, involves using the services of a notary public to authenticate the identity of the person signing the document and to witness the document being signed. The purpose of notarizing a legal document is to deter fraud and assure others the signature on the document is genuine. Each state has its own laws regarding a power of attorney; whether a power of attorney must be notarized depends on the state where the power of attorney is signed and the purpose of the power of attorney.
Power of Attorney Basics
A valid power of attorney requires two parties: the principal -- person signing the power of attorney; and agent -- person given power to act on behalf of the principal. In general, a power of attorney gives an agent the power to assist the principal with his financial affairs (e.g., managing bank accounts and real estate) or make health care decisions (e.g., end of life medical care). A power of attorney is either effective immediately or becomes effective at a future time, such as when the principal suffers from physical or mental incapacity. When the principal dies, the power of attorney is automatically revoked.
Notarized Power of Attorney Basics
A notary public’s function when notarizing a power of attorney is to prepare an acknowledgement that is affixed to or made part of the power of attorney. A properly prepared acknowledgement requires three things: that the principal appear in person before the notary; the principal declares the signature on the power of attorney is his own and made willingly; and principal intends the provisions of the power of attorney to take effect. After the principal signs the power of attorney, the notary signs the acknowledgment under penalty of perjury and stamps the document with his official seal.
Power of Attorney for Finances -- State Law Requirements
To prepare a valid power of attorney for finances, the requirements of the state where the power of attorney is signed must be followed, including whether it must be notarized. Some states, like Illinois, specify a "statutory power of attorney" that provides a complete format the power of attorney must follow. Illinois law also requires a witness to sign the power of attorney in addition to requiring the principal's signature be notarized. In New York, a valid power of attorney must include the notarized signatures of both the principal and agent. Because state laws require documents effecting real estate to be notarized -- and a power of attorney can be used to transfer real estate -- state law is likely to require a power of attorney for finances to be notarized.
Power of Attorney for Health Care -- State Law Requirements
State law requirements for signing a valid a power of attorney for health care vary in several ways, but can generally be categorized into four groups: states that require the principal's signature to be notarized; states that do not require a notarized signature, but require one or two witnesses to sign the document; states that give the option of using a notarized signature or witness signatures; or a state that requires both witnesses and a notarized signature. A power of attorney for health care is often used in conjunction with a living will - a document that states the principal's wishes regarding medical care and treatment, particularly end of life medical care.
References & Resources
- Michigan State Bar: Durable Power of Attorney
- California Attorney General: Consumers Advance Health Care Directive: What's Important to You
- National Notary Association: What is Notarization?
- California Secretary of State: Acknowledgment
- Illinois General Assembly: (755 ILCS 45/) Illinois Power of Attorney Act.
- New York Legislature: Laws of New York: § 5-1501B
- 123Notary: The Power of Attorney Signing
- Achieve Solutions: State-Specific Requirements for Advance Directives
- California Attorney General: Advance Health Care Directive Form
- SJP Communications: Durable Power of Attorney for Finances