Key Takeaways
- A power of attorney (POA) grants authority to an agent to act for a principal
- POA requires acknowledgment and often requires thumbprint in journal
- Notaries may certify copies of original powers of attorney
- Durable POA remains effective if the principal becomes incapacitated
- Be alert to signs of elder abuse or undue influence
Power of Attorney Documents
An elderly man shuffles into your office accompanied by his adult son. The man looks confused and barely speaks. The son does all the talking: "Dad needs to sign this power of attorney giving me control over his finances." He pushes the document forward eagerly. Red flags should be screaming in your mind. Is this elder abuse? Is the father being coerced?
Powers of attorney are among the most important—and most frequently abused—documents you'll notarize. Your vigilance protects vulnerable adults.
What Is a Power of Attorney?
A power of attorney (POA) is a legal document that:
| Element | Description |
|---|---|
| Principal | The person granting authority |
| Agent (Attorney-in-Fact) | The person receiving authority to act |
| Powers | Specific actions the agent may take |
| Duration | When the authority starts and ends |
The principal is giving someone else legal authority to act on their behalf—a profound grant of power that can be abused.
Types of Power of Attorney
| Type | Key Feature | When It Ends |
|---|---|---|
| General POA | Broad authority over all financial/legal matters | If principal becomes incapacitated |
| Durable POA | Survives principal's incapacity | Death of principal or revocation |
| Limited (Special) POA | Authority for specific transaction(s) only | Transaction complete or time limit |
| Healthcare POA | Authority for medical decisions | Death of principal or revocation |
| Springing POA | Takes effect upon specified event | Event occurs + ends per agreement |
Durable Power of Attorney: Key Concept
| Feature | Standard POA | Durable POA |
|---|---|---|
| Principal becomes incapacitated | ENDS | CONTINUES |
| Requires "durable" language | No | Yes |
| Common use | Short-term transactions | Estate planning, long-term care |
A durable POA must contain language like: "This power of attorney shall not be affected by subsequent incapacity of the principal."
Notarizing a Power of Attorney
When notarizing a POA, you have heightened responsibilities:
| Step | Action |
|---|---|
| 1 | Verify identity of the principal |
| 2 | Perform an acknowledgment (most common) |
| 3 | Obtain thumbprint in journal (REQUIRED) |
| 4 | Assess principal's apparent understanding |
| 5 | Be alert to coercion or undue influence |
| 6 | Complete the certificate and seal |
Thumbprint Requirement
| Document | Thumbprint Required? |
|---|---|
| Power of Attorney | YES |
| Real estate affecting property | YES |
| Other documents | Notary's discretion |
Why? POAs are high-risk for fraud. The thumbprint provides an additional layer of identity verification.
Copy Certification of Powers of Attorney
You CAN certify copies of powers of attorney:
| Action | Allowed? |
|---|---|
| Certify copy of original POA | YES |
| Certify copies of birth certificates | NO |
| Certify copies of public records | NO |
This is one of the few documents for which notaries may directly certify copies.
Red Flags: Warning Signs of Abuse
Be alert to these warning signs during a POA notarization:
Principal Warning Signs
| Red Flag | What It May Indicate |
|---|---|
| Confused about what they're signing | Lack of capacity |
| Cannot explain the document's purpose | Lack of understanding |
| Appears nervous, frightened, reluctant | Possible coercion |
| Defers all questions to accompanying person | Undue influence |
| Answers inconsistently | Confusion or pressure |
Companion Warning Signs
| Red Flag | What It May Indicate |
|---|---|
| Answers for the principal | Controlling behavior |
| Won't allow private conversation | Something to hide |
| Pressures principal to hurry | Rushing before detection |
| Becomes agitated when asked questions | Fear of exposure |
| Insists on being present throughout | Controlling situation |
Your Right to Refuse
You have the RIGHT and RESPONSIBILITY to refuse if:
| Concern | Action |
|---|---|
| Principal doesn't understand | Ask clarifying questions; refuse if unresolved |
| Principal appears coerced | Request private conversation; refuse if concerns remain |
| Principal cannot communicate directly | May not proceed if they cannot interact |
| Something seems wrong | Trust your instincts |
You are not obligated to notarize any document, especially if you suspect fraud or undue influence.
On the Exam
Expect 2-3 questions on powers of attorney. Key points tested:
- Thumbprint REQUIRED: Just like real estate documents
- Durable POA: Survives incapacity (standard POA does not)
- Copy certification: Notaries CAN certify copies of POA
- Red flags: Know the warning signs of elder abuse
- Right to refuse: Can refuse if suspicion of coercion
Is a thumbprint required in the journal when notarizing a power of attorney?
What type of power of attorney remains effective if the principal becomes incapacitated?