Can a Notary Make a Power of Attorney Document?

By Cindy DeRuyter, J.D.

Can a Notary Make a Power of Attorney Document?

By Cindy DeRuyter, J.D.

A power of attorney form is a legal document authorized by state law and designed to authorize someone else to handle your affairs in your stead. The requirements to validly execute a power of attorney vary by state but may include witnesses' signatures as well as a notary public's signature. Notaries cannot prepare power of attorney documents unless they are also licensed attorneys.

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Reasons for Creating Power of Attorney Documents

A power of attorney form is primarily an estate planning tool, although it has other uses. Power of attorney documents for finances allow the person creating the form, called the principal, to designate an agent to handle financial matters.

A durable power of attorney allows the agent to continue acting in the capacity if the principal becomes incapacitated or incompetent. The principal can limit powers to one or more specific types of transactions, such as real estate or banking, under a power of attorney. Alternatively, the principal can use a power of attorney document to grant broad authority, allowing the agent to do anything the principal could do.

State laws may also provide for the creation of a power of attorney for health care matters. This document is called a medical directive or a health care directive in some states and a health care power of attorney in others.

Requirements to Execute a Power of Attorney

In order to create a valid power of attorney, the principal must be at least 18 years old. It is also important that the principal has the mental capacity to understand what the power of attorney document is and does.

The requirements to make a power of attorney valid depend on state law but may include the signature(s) of one or more witnesses, a notary public's signature, or both.

The Role of a Notary Public

Notary publics serve an important role in executing power of attorney forms and other legal documents. The notary's role for a power of attorney document is to witness and confirm the identity of the person signing the form. The notary is certifying that the person who signed the form did so in the notary's presence.

In most cases, notary publics cannot provide legal advice or draft any type of legal document, including power of attorney forms. One exception to this rule is that a notary who is also an attorney licensed in the state where the power of attorney is created may both create the document and notarize the principal's signature on it.

The Notary as a Disinterested Party

Notaries signing legal documents in their official capacity must not have an interest in the document. That means that a notary cannot be named in the document as an agent or otherwise be a party to the form in which they would receive some kind of benefit or gain. It's important for a notary public to remain disinterested, otherwise the notary could be held liable for criminal or civil charges.

In states that allow people to prepare their own power of attorney documents without an attorney's involvement, notaries could draft their own power of attorney forms. However, they could not also notarize their own signatures and would need to seek out another notary to execute the document if state law requires notarization.

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