The Power of Attorney at Margaret's Kitchen Table
Priya is a mobile notary in Craighead County who keeps the journal Arkansas requires. Tuesday she makes a house call: Margaret, 88, wants to sign a durable power of attorney naming her son Duane. Duane, who is also Priya's neighbor, answers most of Priya's questions, hands over Margaret's current state ID, and explains that Margaret's hands shake too much to sign, so he has already written her name on the document himself - "notarize it as her mark." Margaret does say "yes" when asked whether she wants to sign, but cannot say what month it is. Duane later asks Priya to leave the journal entry blank "because it's a private family matter" and pushes $40 across the table instead of her usual fee.
1. Identify each notarial problem in the signing itself.
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The signature by another. A notary may accept a signature made by someone other than the signer only when the signer is physically unable to sign, directs the other person to sign the signer's name, and that signing happens in the notary's presence at the time of the act. Here Duane signed earlier, off to the side, apparently on his own initiative. That does not qualify - it must be redone in front of Priya at Margaret's direction, and the certificate should reflect the circumstances.
Capacity to understand the act. Priya does not decide legal competence, but she must be satisfied the signer is knowingly and voluntarily executing the instrument. A bare "yes" from someone who cannot name the month, while her son answers every question, is not enough. Priya should speak to Margaret directly, out of Duane's earshot, with simple questions about what the document does and who it names.
2. What are Priya's obligations regarding the journal entry and the $40?
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Journal. She may not leave the entry blank. The journal is the contemporaneous record that lets a court, a title examiner, or the Secretary of State reconstruct what happened. Omitting or blanking an entry to accommodate a family's wish for privacy is a false record, and a blank she creates is a blank someone else can complete. Any act she performs is recorded in full - date, act type, signer, and the identification method used.
The money. She may charge only the fee the Act permits for the notarial act. A payment offered to secure a favor - an altered or missing record - is not a fee; accepting it converts a routine act into something else entirely and is a serious violation. She declines the cash and states plainly that the entry will be made either way.
3. What should Priya actually do at the table, and what are her realistic options?
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She has two clean paths and should choose between them on the evidence in front of her.
- Proceed correctly. If, after speaking with Margaret alone, Priya is satisfied she understands and wants the power of attorney, Duane may sign her name - but only in Priya's presence, at Margaret's clear direction, with Margaret confirming it. Priya records the details, notes that the signature was made by another at the signer's direction, and dates the certificate that day.
- Decline and document. If Margaret cannot explain the document or who is helped by it, Priya declines. She writes a journal entry stating that no notarial act was performed and why.
What she may not do is notarize the existing signature, skip the conversation, blank the journal, or take the offered money.