Tuesday, April 29, 2008

a notary public ought to know better

I've got a case on my desk with a seller who has Alzheimers and a Power of Attorney that doesn't have a full acknowledgment and doesn't meet our state statute requirements for notice.

I asked the seller's daughter who prepared the Power of Attorney and she said the notary public prepared it.

I hear you. I hear everyone shouting THAT'S THE UNAUTHORIZED PRACTICE OF LAW to which I reply, yes and we see it a few times every year. Crappy deeds and other documents that have been prepared by those who shouldn't.

This family who trusted the notary and wanted to save a buck are in a bind. I'm attempting to work out solutions but there isn't much money in the pot and going to court for guardianship is an unlikely alternative.

The seller no longer has periods of lucidity and so a new document is out of the question.

The Power of Attorney does meet pre-2000 requirements except for the missing acknowledgment language.

It's a cash deal and I have discussed an exception to coverage for matters related to the statutory failings of the Power of Attorney with the buyer. I am contacting our underwriter for permission to insure with that exception provided the Recorder takes the document with the notary clause as is.

Fingers crossed.


Diane Cipa said...

Anonymous sent this response via e-mail:

Pennsylvania (still good law)

• LaBrum v. Commonwealth Title Co., 56 A.2d 246 (1948).

Title insurance company may prepare such instruments that have to do with the transfer of title so long as the papers involved pertain to and grow out of the

company’s business transaction and are intimately connected therewith. A title insurance company which did not hold itself out to public as authorized to do any business except title insurance business, but which, incidental to issuance of title insurance, prepared deeds, mortgages, assignments of mortgages and agreements, and informed applicants of conditions upon which title insurance would be issued, was not engaged in unauthorized “practice of law.”

• Childs v. Smeltzer, 18 D. & C. 39, affirmed 171 A. 883 (1933).

Drafting of simple legal instruments, such as deeds, mortgages, powers of attorney, assignments and releases, by filling out printed blanks or copying from book of forms, by one who does not hold himself out as member of bar, as practicing law, or as having equal qualifications with practicing lawyers, but only as capable of performing such work as has customarily been done by conveyancers and notaries public, does not constitute practice of law and is not in violation of Act of April 17, 1913, P.L. 80, 17 P.S. § 608.

Governor Rendell signed into Law Act 27 of 2005 (Senate Bill No. 248) on July 5, 2005 which became effective September 3, 2005 which amends Act 1997-56 (HB 141) which became effective November 26,1997, which amended P.L. 205, No. 69 (first amended December 22, 1989 at P.L. 704, No. 94) and becomes the new curative statute for defective acknowledgments prior to 2005 (that means up to December 31, 2004).

This law was enacted to alleviate issues from confusion over missing/conflicting dates, party capacity, numerous typographic/orthographic errors which can affect the validity of recorded documents acknowledgments.

Valerie Crowell said...

I know every State is different, but I would question that they competent when the thing was signed in the first place?

I won't even go there with a notary drawing documents...

Diane Cipa said...

So, I guess what you are saying, Anon, is that a notary in PA can fill out a document without it being the unauthorized practice of law? What do you think about this, the principal brought in a POA and the notary suggested that they use a different form. She provided a different form which BTW did not meet current statute and also did not contain the correct acknowledgment for a recordable document.

As an aside, we are fixing the recordability issue because I was able to contact the notary and she is replacing her acknowledgment with one that has the correct language.