Can a Notary Make a Power of Attorney Document?

By Chris Blank

A notary, also called a notary public, serves an important function in verifying the authenticity of legal documents and signatures. A notary may also witness signatures or depositions associated with a power of attorney. However, under most circumstances, a notary cannot draft a power of attorney unless she also holds a license to practice law.

Duties of a Notary Public

In most states, notaries serve two major functions: verifying the identity of a person signing a document and administering oaths or depositions a person makes. To verify a signature, a notary requires the person signing the document to provide valid proof of identification, such as a driver's license or a passport. The person then signs the document in the notary’s presence, and the notary places her seal on the document. Some states assign broader powers to notaries: For example, in Louisiana, a notary has authorities that rival those of a justice of the peace.

Disinterest Versus Fiduciary Duty

A notary serves as a disinterested party; that is, she does not play an active role in the legal or personal affairs of parties who utilize her services. Drafting a power of attorney requires the active involvement of an interested party, usually an attorney, although some people do draft their own documents. An attorney who drafts a power of attorney and an agent who executes the power of attorney each form a fiduciary relationship with the principal -- that is, both parties must act in the best interests of the principal in executing their duties.

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Certifying Versus Drafting

Drafting documents such as a power of attorney is one of the tasks assigned to a licensed attorney. Attorneys use their legal education and experience in the areas of law that they practice to ensure that the documents they draft are legally valid. In drafting a document such as a power of attorney, an attorney is also responsible for ensuring that the contents of the document uphold the interests of the client as much as possible. By contrast, in witnessing the signature of a document, a notary is only responsible for determining the authenticity of the signature rather than the validity of the document or its contents.

Prohibitions and Limitations

As a disinterested party, a notary is prohibited by law from being a party to a deposition she certifies or for any document whose signature she witnesses. If a notary also holds a license to practice law, she may not notarize documents she has drafted in her legal capacity as an attorney, documents assigning powers of attorney. A notary is also prohibited from witnessing or certifying documents, including powers of attorney, in which she is either the principal or the agent.

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Do Wills Have to Be Notarized?
 

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