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.

Ready to appoint a power of attorney? Get Started Now

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.

Ready to appoint a power of attorney? Get Started Now
Procedure for Writing a Will

References

Resources

Related articles

Can Documents Obtained by a Private Investigator Be Requested as a Discovery in a Divorce Case?

If you suspect that your soon-to-be ex will go to any and all lengths to dig up information to influence your divorce case, you're probably understandably concerned. Even if you have nothing to hide, you might fear that if she hires a private investigator, her lawyer could turn molehills into mountains. Although she has a right to hire an investigator, you also have the right to know exactly what information that investigator provides to her, usually well in advance of trial.

Laws Pertaining to Contesting a Will in Arizona

Probate is the legal proceeding used to validate a will and give legal authority to the executor, the person overseeing the estate and transfers to heirs. A will being offered for probate in Arizona may be contested, or challenged, by a person with an interest in the estate, such as a child of the deceased person.

Does a Living Trust Need to Be Notarized?

If you create a living trust, you transfer some or all of your property into a trust fund. When you die, the trust passes on these assets to your chosen beneficiaries. One of the main benefits of forming a living trust, as opposed to simply writing a will, is that it avoids the costs and delays associated with the probate process. Laws relating to living trusts vary from state to state; not all states require notarization. There are, however, certain advantages to notarizing a living trust.

Related articles

What Determines the Legal Signature for a Corporation?

A corporation is a business created under state law that is a separate legal entity from the individuals who own or run ...

What Makes a Will Legal & Binding?

When executed wholly and correctly, a will is a legal document that supersedes any other document, contract or verbal ...

How to Cash Bonds With a Power of Attorney

If you are the agent under a financial power of attorney, the person who drew up the document appointed you to act for ...

Do Wills Have to Be Notarized?

The signature of the testator, or will maker, need not be notarized, nor can a notarized signature replace the legal ...

Browse by category
Ready to Begin? GET STARTED