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Question of the Week

Posted: May 12, 2022 | Author: Cornerstone Compliance Team
compliance  power of attorney 

Question: Can a power of attorney be signed by a person other than the principal delegating the power?

Answer: The answer is yes. A third party can sign in each of the three Cornerstone states.

In Arkansas, Section 21-41-107 states that if a principal is physically unable to sign or make a mark, a disinterested third party can sign the name of the principal if:

(a) The principal directs the disinterested third party to sign the name of the principal in the presence of two disinterested witnesses.

(b) The disinterested third party signs the name of the principal in the presence of the notary public, the principal, and the disinterested witnesses.

(c) Each disinterested witness signs his or her own name beside the signature.

(d) The notary public writes below the signature:

"Signature affixed by (name of third party) at the direction and in the presence of (name of principal unable to sign or make a mark) and also in the presence of (names of two witnesses).

(e) The notary public notarizes the required notarial certificate.”

In Texas, the law is similar to the Arkansas law, but only requires one disinterested witness (Texas Government Code 406.0165):

Sec. 406.0165.  SIGNING DOCUMENT FOR INDIVIDUAL WITH DISABILITY. 

(a)  A notary may sign the name of an individual who is physically unable to sign or make a mark on a document presented for notarization if directed to do so by that individual, in the presence of a witness who has no legal or equitable interest in any real or personal property that is the subject of, or is affected by, the document being signed.  The notary shall require identification of the witness in the same manner as from an acknowledging person under Section 121.005, Civil Practice and Remedies Code.

(b)  A notary who signs a document under this section shall write, beneath the signature, the following or a substantially similar sentence:

"Signature affixed by notary in the presence of (name of witness), a disinterested witness, under Section 406.0165, Government Code."

(c)  A signature made under this section is effective as the signature of the individual on whose behalf the signature was made for any purpose.  A subsequent bona fide purchaser for value may rely on the signature of the notary as evidence of the individual's consent to execution of the document.

(d)  In this section, "disability" means a physical impairment that impedes the ability to sign or make a mark on a document.”

In Oklahoma, a similar law is found in the statutes pertaining to power of attorney rather than notaries in Title 58, Chapter 29, Section 3005:

“A power of attorney must be signed by the principal or, in the principal's conscious presence, by another individual directed by the principal to sign the principal's name on the power of attorney. A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments.”

 

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