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Thursday, May 24, 2018
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What Is the Difference Between Durable and Springing Power of Attorney? 91 Comments Follow Comments BY MARLO SOLLITTO | Last Updated 3.15.2018 A power of attorney (POA) document legally enables a person (called the “principal”) to appoint a trusted relative or friend (called the “agent”), to handle specific health or legal and financial responsibilities on their behalf. There are two types of power of attorney that afford different legal abilities. POA for healthcare gives an agent the authority to make medical decisions on behalf of the principal. POA for finances gives an agent the authority to make legal and financial decisions on behalf of the principal. These documents are crucial for enabling trustworthy family members to help manage an aging loved one’s medical care, bills and legal affairs. This assistance is invaluable for a senior who is incapable of making informed decisions for themselves. However, POA is also useful for seniors who are still competent but simply need an extra set of hands and eyes to help manage social security benefits, bills, long-term care decisions, etc. Families should prepare these legal documents long before incapacitation is a factor. A simple accident or illness could cause a loved one to suddenly become incapacitated, but POA documents allow agents to immediately step in and help manage the situation. Without medical and financial POA, family members must go through a great deal of red tape and expense in order to obtain guardianship so they can make decisions on a loved one’s behalf. This includes healthcare decisions, especially regarding end-of-life care, long-term care decisions, Medicaid planning and much more. Read: How to Get Guardianship of a Senior Drafting POA documents well in advance is also an important part of preparing for the possibility of dementia. Most seniors do not receive a diagnosis of dementia until their condition has progressed significantly and they have suffered serious cognitive impairment. Being proactive is crucial because a principal must be competent in order to establish a POA. Many families wait until it is too late to draft these documents, and those in the later stages of Alzheimer’s disease and other types of dementia typically are not mentally capable of legally appointing agents to act on their behalf. YOU MAY ALSO LIKE Free AgingCare Guides Because timing and a principal’s ability to make informed decisions are such important factors, there are two ways to write POA documents that can affect when they become “active” or “inactive.” With a durable POA, the document becomes effective immediately upon signing. The agent obtains legal authority to make decisions about matters detailed in the document and maintains it whether or not the principal ever becomes incapacitated. On the other hand, a springing POA names an agent in advance but does not grant them legal authority for decision making until the principal becomes incapacitated. The difficulty with springing POA is that the principal must be incredibly careful when specifying what type of event will activate the agent’s powers. If it isn’t crystal clear what kind of incapacitation triggers the POA, then the family may have to waste precious time going to court to determine if the principal meets the POA document’s conditions for incompetency and whether the agents are able to assume their duties. In most cases, some sort of certification from a doctor regarding competency is required to activate a springing POA. Less common in elder care legal planning is the non-durable POA. This type of POA takes effect immediately upon signing but does not remain effective once the principal is deemed incompetent. This type of POA is usually used in business transactions and is meant to grant an agent temporary authority to sign financial or legal documents when the principal is unavailable. People often balk at the thought of preparing and signing a power of attorney document. Some may feel frightened at the prospect of losing their independence, and some are afraid that the agent they appoint may go against their wishes. It’s essential, of course, to choose an agent wisely and to discuss the scope of their ability to act on your behalf. Keep in mind that these documents can be revised or revoked at any time, as long as the principal is still competent. Otherwise, it stays in force until the principal dies. To learn more about power of attorney documents and other estate planning and legal matters, find a reputable elder law attorney in your area and make an appointment for a consultation.
Monday, April 16, 2018
Notary Bulletin 5 Steps To Checking IDs By Bill Anderson on May 05, 2016 in Best Practices How to check an ID Updated 4-10-18. A Notary's duties require you to identify a signer — but you may be wondering how to tell if a signer's ID is genuine or not. Here are some practical tips to help you do just that. First, get to know your state’s IDs and U.S. passports because these are the IDs you’ll encounter most often. Become familiar with their security features: micro-printing, “ghost” photos, holograms, swipe stripes, barcodes and raised lettering (such as the raised date of birth found on Texas driver's license photos). Learn their informational elements, such as name, address, issue and expiration dates, on both the front and back of the ID and know where they are placed. Also, be sure to check for changes to your state's ID rules on a regular basis. In 2017, Florida added a veterans health ID card to the list of identification document Florida Notaries may accept from a signer, while California added consular and tribal IDs that are issued within the past 5 years, have a serial or identification number, and contain the signature, photograph and description of the individual to its list of acceptable IDs. And effective July 27, 2018, Arizona Notaries may accept a nonoperating ID license; an inmate identification card issued by Arizona Department of Corrections, if the inmate is in the custody of ADC or any form of inmate ID issued by a county sheriff, if the inmate is in their custody as proof of a signer's identity. Handy Resources For IDs from other states, a copy of the current edition of the NNA Keesing Documentchecker Guide is a good resource. The Guide is updated each year and includes the latest versions of IDs. Next, get a small ultraviolet or “blue light” and magnifying glass. The blue light will show hidden ID security features like holograms and ghost photos. The magnifying glass will help you spot micro-printing on the ID. Use these tools in front of the signer to show you’re serious about what you’re doing. 5 Steps To Checking IDs There are 5 simple steps to follow when checking any ID every time you perform a notarization. In order to follow these steps, ask the signer to hand you the ID so you can inspect it. Step 1. Look at the photo on the ID and then look at the signer. Then do it again. Make sure the photo and physical description reasonably match the signer. Step 2. Check the expiration date. Step 3. Make sure all informational elements on the ID are present — both front and back. Step 4. Use the blue light and magnifying glass to check the ID’s security features. Step 5. Have the individual sign your journal so that you can compare the signature in the journal with the one on the ID. Like the photograph and physical description, check the signatures to see if they are reasonably similar. All these steps should take less than a minute. The time will be well spent. Most signers will appreciate the lengths you’ve gone to protect them and their transaction from forgery. You also will go a long way toward protecting yourself against claims.
3 Important Tips For When A Document Lacks A Notary Certificate By David Thun on April 11, 2018 in Best Practices confused-no-cert-resized.jpgThe simplest way to know what type of notarization is needed on a document is to look at the Notary certificate. If it is an acknowledgment form or the wording has any variation of the word “acknowledge” in it, you perform an acknowledgment. If it is a jurat or verification form, or the wording has the words “subscribed and sworn,” you perform a jurat or verification. But what do you do if there’s no certificate? Here are three important steps to follow in this situation: 1. Avoid the unauthorized practice of law. If you aren’t an attorney, remember that it’s against the law for you to provide unauthorized legal advice. This includes answering simple questions from a signer such as “What notarization do you think I should use here?” or “Which certificate form should I use?” Giving that sort of advice is a violation of law and can result in some states with being charged with a criminal offense or possibly losing your Notary commission. And, if you give a signer the wrong information and it causes the signer legal problems, you could be forced to pay costly damages in a lawsuit. When faced with the need to know the type of notarization a signer needs, always follow these rules: Never choose the type of notarization for the signer, even if the signer wants you to. Never give a signer advice about the type of notarization a particular document needs. For example, you should never say, “Most power of attorney documents I notarize require an acknowledgment.” You have no way of knowing if the signer’s document is an exception to the norm. Even if it isn’t, you’re unlawfully practicing law because you are applying legal concepts to a signer’s particular situation. 2. Ask the signer to choose. While you can’t choose the notarization for a document, the signer can. If the signer can tell you the type of notarization they want, you can simply proceed from there. However, most signers are unaware that there is more than one type of notarization or how to distinguish one from another. If the signer isn’t sure what they want, it’s OK to describe the different notarial acts the law authorizes you to perform and allow the signer to pick the one they want. For example, you can describe how acknowledgments and verifications (or jurats) differ and let the signer choose between them. Again, the most important thing is not to make the choice for them. 3. Check with the issuing or receiving agency. If the signer still isn’t sure which notarization they need, they should contact someone who knows. This could be the individual or agency that issued the document, or the one that will receive it. If they can’t provide help, the signer may need to consult with an attorney who can give legal advice about the document. David Thun is an Associate Editor at the National Notary Association.