Updated: Jul 21
In December 2020; Governor Cuomo signed a law to simplify and improve the state's power of attorney form. Effective June 13, 2021, the new Power of Attorney (POA) will be used. This is great because this may allow for a less restrictive document! But there are a few changes in the new power of attorney that the notary should be aware of!
Substantial Compliance instead of Strict Compliance
Thanks to a bunch of YouTube videos and articles by the NYS Bar Association (link below); the new POA is considered “Substantial Compliance” instead of “Strict Compliance”. Basically, in my opinion, it appears that the old POA had room for no errors! If you misspelled a word or changed the pdf, then there would be issues in an agency accepting the document. “Substantial Compliance” allows for typographical errors with acceptance due to intent. So if there’s a misspelled word or when your PDF saves a word document and it replaces a letter with a character; it doesn’t make it null and void. So that seems great because I have definitely received documents to print and the formatting has altered a random word. So yay!
Attorney-in-Fact vs Agent
So from first-hand experience, many people who are acting as an agent feel uncomfortable writing or scripting the words attorney-in-fact because they feel they are misrepresenting themselves as an attorney. So now in the new form; the agent signing documents will now sign in script (yes cursive if possible) “(Name of Agent) as Agent for (Principal)” or "(Name of Principal) by (Name of Agent), as agent”. To me this makes sense and there are fewer words involved. Now, I know many attorneys use stamps with the terminology “attorney in fact” so I’m not sure if a document wouldn’t be accepted for having still stated “attorney-in-fact” and I have yet for an attorney or the Secretary of State for New York to clarify. From my non-legal background, it sounds like it should be okay.
This is what the law specifically states: https://www.nysenate.gov/legislation/laws/GOB/5-1507
This is actually very exciting to see! NYS now understands that just because you can’t physically sign doesn’t mean that you’re incompetent! In other states, this is referred to as “Signature by Proxy.” For example, I have signed POA with a person who has broken their hand or had severe Parkinson’s. Prior to the 2021 POA they were told they had to make a “mark” usually an x or some sort of line. But it wouldn’t really match any previous signature and it was often very difficult to get enough pressure on the paper to make an effective mark. And in my opinion, it was a bit degrading because I would have someone putting a pen in their mouth or using a limb to make a mark. Now, I can ask someone (not the agent) to sign the principal’s name. I didn’t read anywhere that the notary is unable to sign for the principal, as it is allowed in other states. Now I’ve called The National Notary Association, The NYS Bar Association, The NYS Senate, and The NYS Secretary of State; not one organization could clarify the guidance on properly performing this notarization. Looking at other US State's guidelines, this is how I would perform the notarization:
In script, “Signature affixed by (name of other individual) at the direction of (principal).”
I would include the individual’s name and information in my journal that affixed the signature. The individual could be the witness, notary, or another individual.
In the previous Power of Attorney from 2009, the articles that I have read stated that two witnesses were required if the “Gift Rider” was over $500. Now they’ve done away with that requirement but they do require two signatures for the witnesses. However, one of those witnesses can be the notary. Of course, as in the past, the second witness cannot be an agent and must be over the age of 18. I usually stay away from any direct family members or caretakers to be safe. See the direct information from the NYS Senate: https://www.nysenate.gov/legislation/laws/GOB/5-1504
The Principal and Agent during notarization are to be considered competent. The person should be over the age of 18 but I suppose if an individual was emancipated there would be an exception. In rare cases, I would contact the Secretary of State or NYS Bar Association to clarify as this seems to be in the legal advice territory.
Competency however is something that is really tricky because as a notary; you're often not trained in mental health to be able to effectively determine the competency of an individual. As an NYS Notary, there are a few guidelines I use but they're my own guidelines that are not listed on any government site.
Have a conversation with the person. Ask about their day, the weather, what are the documents they are signing, what is the address on the identification, etc. I really try to stay away from yes/no questions because often people who are hearing impaired or don’t speak English will just nod in agreement or say yes. So I don’t really take the rule of competency to mean whether I think the person is able to sign the documents so much as I’m making sure the person understands what I am saying to them and can understand the documents. If I feel that there is someone answering for the person or making them feel uncomfortable, I usually will ask the individual to step outside of the room or get us a pen so that I can speak to the signer privately.