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Can a Notary Witness and Notarize on a Durable Power of Attorney?

By Jeanne E. Murphy posted 09-27-2021 08:18

  

The Secretary of State seems to say no:  “A Notary public may not be a signature witness and notarize the same document.” The Secretary of State relies on MCL 55.291, which sets forth prohibited conduct for notaries and includes “[n]otarize his or her own signature.” MCL 55.291(2)(b).

The requirements for the execution of a durable power of attorney, under MCL 700.5501(2), provide that the document must be one or both of the following:

         (a) Signed in the presence of 2 witnesses, neither of whom is the attorney-in-fact, and both of whom also sign the durable power of attorney.
         (b) Acknowledged by the principal before a notary public, who endorses on the durable power of attorney a certificate of that acknowledgment and the true date of taking the acknowledgment.


These requirements mandate that only the signature of the principal, not the witnesses, be notarized. This appears to leave wiggle room to allow a notary to witness and notarize the durable power of attorney because the notary would not be notarizing their own signature as a witness, just the principal’s signature.  

The good news is that certainty may be on the way. The Probate and Estate Planning Council of the State Bar of Michigan is currently reviewing the Uniform Power of Attorney Act. Section 105 of the current draft provides that a power of attorney under the act will be durable if it is “signed in the presence of 2 witnesses, neither of whom is an agent nominated in the power, both of whom also sign the power, and one of whom may be an individual who also acts, in the execution of the power, as a notary public or person authorized by law to take acknowledgments.” (Emphasis added.) 

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11-04-2021 14:44

I sent an e-mail to the Michigan Secretary of State Office a long time ago telling them its website was misstating the law, never got any response!

10-18-2021 14:15

I fail to see the point of having a witness signature if it isn't notarized. Why notarize the principal's signature, then?

10-13-2021 11:42

I remind the group that a recent thread discussed that some banks (Bank of America was specifically named) insist that a DPOA be BOTH witnessed and notarized. Yes, that's contrary to the plain language of the statute, but "Ya can't fight City Hall!"

09-30-2021 10:32

I definitely disagree with the Secretary of State position. The notary is only notarizing the signature of the principal and not the signature of the witnesses in most cases. Thus, the notary can be one of the witnesses.
Robert Kaplow