The Out-of-State Principal and the Power of Attorney
Marcus is a Mississippi notary employed at a title company. A man named Evan brings in a durable power of attorney naming Evan as agent for his father, who lives in Texas. The document is already signed by the father and dated three days earlier. Evan says his father signed it at home in Texas and that the father's signature was witnessed by Evan's sister. Evan asks Marcus to attach the notary block so the power of attorney can be used to sell the father's Mississippi property. Marcus has never met the father. The document has an acknowledgment certificate with a blank venue and no notary signature. Evan says his father cannot travel because of a recent surgery and asks whether Marcus can call the father on FaceTime and then complete the acknowledgment. Marcus has a current Mississippi commission but has not registered as an electronic notary.
1. Can Marcus complete the acknowledgment based on the father's prior signature, Evan's statement, and the sister's witness? Why or why not?
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No. An acknowledgment is a notarial act in which the signer personally appears before the notary and acknowledges the signature. Evan's statement and the sister's witness do not substitute for the father's appearance. Marcus did not see the father sign and has no personal knowledge of him. The certificate would falsely state that the father appeared and acknowledged before Marcus. Marcus should decline to complete the certificate; he may explain the notarial process to Evan, but he should not give legal advice about the power of attorney's validity. The father must appear before a notary, either in person or through a lawful remote process, or the document must be handled in a way that complies with applicable law.
2. Would a FaceTime call let Marcus complete the acknowledgment? Identify the conditions under which a Mississippi remote notarization could be performed.
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A casual FaceTime call would not. Mississippi remote notarization is available only to a notary who has registered as an electronic notary and who uses an approved remote notarization system that meets the Secretary of State's requirements, including identity proofing, audio-video communication, and recordkeeping. Marcus has not registered, and a consumer video call is not an approved system. If Marcus wants to handle remote acts, he should complete the e-notary registration and use an approved platform. Otherwise, the father should appear before a notary where he is located, or another properly registered remote notary should handle the act. Marcus should not describe a noncompliant call as a valid notarization.
3. What certificate and venue problems appear on the document, and how should Marcus handle them?
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The acknowledgment has a blank venue and no notary signature, so it is incomplete. The venue should identify the state and county where the notarial act occurs, not a county chosen to match the property. The certificate must identify the signer, the date of the act, the notary's signature, the seal, and the commission expiration. But correcting the form does not solve the bigger problem: Marcus cannot certify an appearance that did not happen. He should not fill in the venue or attach his seal merely to make the document recordable. The document should be re-presented to a notary before whom the father actually appears and acknowledges.