The Hospital Signature by Mark and the Emailed Affidavit
At a Grand Rapids hospital, notary Elena is asked to notarize a patient's durable power of attorney. The patient, Mr. Okafor, has a hand tremor and cannot write a signature; he can make an "X" mark. His adult daughter, who is named as agent, asks Elena to sign his name for him "to make it legible." Mr. Okafor is alert, answers questions, and says he wants the document signed. A nurse is present but is not a notary. The document has an acknowledgment certificate, not a jurat. Elena's commission is current, but her seal is in her car and her stamp includes an old expiration date of December 31, 2025; her current commission expires April 4, 2030. She also is asked to notarize a separate affidavit for the daughter, who is not present and sent it by email.
1. How should Elena handle Mr. Okafor's signature by mark, and may she sign his name for him?
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Mr. Okafor may sign by mark if he cannot write a signature, but the mark must be made in Elena's presence, and she should record that it is his mark. Elena should not sign his name for him merely to make it legible unless Michigan law or a specific legal authorization permits a proxy signature; the safer rule is that the signer's own mark is the signature. She should note the method of signing and follow any witness requirements for a mark. Because the document is an acknowledgment, Mr. Okafor must acknowledge the mark as his signature; Elena should not decide capacity for him, but if he is alert and understands, she can proceed.
2. What must Elena do about the seal and certificate before performing the notarial act?
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Elena must not use the stamp with the old expiration date. A notarial seal must be current and show the correct commission expiration, her name, "Notary Public," "State of Michigan," the county, and any other required element. She should retrieve her current seal before performing the act. The certificate must be fully completed with venue, date, acknowledgment language, and her signature and seal. Performing the act with an expired or incorrect stamp creates a defective notarization.
3. Can Elena notarize the daughter's affidavit based on the emailed request? Explain.
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No. A notary must have the signer personally appear before her. An emailed request from the daughter, without the daughter present, is not sufficient for a traditional notarization. Elena should decline the emailed affidavit. If Michigan's remote notarization rules apply and Elena is authorized and using approved technology, the daughter could be notarized remotely, but that requires identity proofing, audio-video, and the required electronic records. A mailed or emailed signature alone is not acceptable.