The Power of Attorney for Mom
Daniel Okafor is a North Dakota notary. His mother, Grace, wants to sign a durable power of attorney naming Daniel as her agent. Grace is 78, speaks English but has limited vision. Daniel's sister, Ada, drafted the document from an online template and will serve as alternate agent. Grace appears at Daniel's kitchen table without photo ID; Daniel knows her and has known her all his life. The document is in English, but the acknowledgment certificate is on a separate page and does not state the county or state. Daniel's neighbor, who is a witness, asks Daniel to also notarize a copy of Grace's passport so the bank can keep it on file.
1. Can Daniel notarize Grace's signature on the power of attorney? Explain the conflict-of-interest and identity issues.
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Daniel should refuse. He is named as Grace's agent in the very document he would be notarizing, which makes him a party to the transaction or at least a person with a beneficial interest in it. A notary may not perform a notarial act when the notary is a party or has a beneficial interest. The conflict is decisive even though Daniel has personal knowledge of Grace's identity. Personal knowledge can be satisfactory evidence of identity in an appropriate case, but it cannot cure a disqualifying conflict. Another notary must take Grace's acknowledgment. Daniel can still explain the document, but he should not sign or seal the certificate.
2. What is wrong with the acknowledgment certificate, and how should it be completed?
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The certificate is missing the venue: the state and county where the notarial act is performed. A proper acknowledgment should identify the signer, state that the signer personally appeared and acknowledged the document, show the date, and include the notary's signature, name, commission expiration, and seal. Because the certificate is on a separate page, it must be clearly connected to the document, such as by a recital or attachment that identifies the document being acknowledged. Daniel should not fill in a county he did not act in. The substitute notary should complete the venue based on where Grace actually appears and should use a seal that matches the commissioned name.
3. May Daniel certify a copy of Grace's passport for the bank?
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He should decline. A passport is a federal public record, and notaries generally are not authorized to certify copies of public records or records whose custodian is another agency. Copy certification is for limited situations involving an original document, and even then the notary must have authority and must not certify a document that law or rule excludes. The bank should verify the passport through its own procedures or accept a copy made by the appropriate issuing or custodial agency. Notarizing a passport photocopy would suggest an authentication the notary cannot lawfully give.