Errors in a power of attorney for someone that has been diagnosed with dementia.

Asked over 1 year ago - Ventura, CA

A power of attorney was deemed invalid by a financial institution because the notary date was inconsistent with the execution dates on the power of attorney document. The notary date is the 20th of the month. The signature dates are the 2nd of the month. I want to avoid a conservatorship, how do I get past this error?

Attorney answers (3)

  1. William Martin Burbank

    Contributor Level 12

    2

    Lawyers agree

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    Answered . Someone needs to educate the financial institution. There is not necessarily an error in the power of attorney. A power of attorney can be signed one day and the signature acknowledged on a different day, as long as the person telling the notary that that is their signature and that they intended to execute the form.

    A power of attorney is legally sufficient if all of the following requirements are satisfied:

    (a)The power of attorney contains the date of its execution.

    (b)The power of attorney is signed either (1) by the principal or (2) in the principal's name by another adult in the principal's presence and at the principal's direction.

    (c)The power of attorney is either (1) acknowledged before a notary public or (2) signed by at least two witnesses who satisfy the requirements of Section 4122.

    The following is the requirement for an Acknowledgment: There is nothing in the code that says the document must be acknowledged on the same day as the document is executed.

    The certificate of acknowledgment must be in the form set forth in Civil Code section 1189.
    In the certificate of acknowledgment, the notary public certifies:
    • That the signer personally appeared before the notary public on the date indicated in the
    county indicated;
    • To the identity of the signer; and
    • That the signer acknowledged executing the document.

    It is also important to point out that a diagnosis of Dementia does not necessarily mean that a person is incompetent to either do their own banking, or to execute a new power of attorney.

    Every situation is different, it is important to discuss your legal issue with a knowledgeable attorney in your... more
  2. Kelly Scott Davis

    Pro

    Contributor Level 19

    1

    Lawyer agrees

    Answered . If you can locate the notary have them recertify their notarization. This is a case of form over substance. Affidavits of any witnesses could be used to correct the discrepancy. Or you can contact an elder law attorney to have them meet with the person to see if they have sufficient capacity to execute a new POA.

  3. James P. Frederick

    Contributor Level 20

    1

    Lawyer agrees

    Answered . If the principal still has capacity, a new POA should be drawn up. I can understand the bank's position on this, even though I agree that it is possible to notarize documents based on the principal's acknowledgement. Given possible issues of dementia, however, the bank needs to protect their customer, (and protect themselves from liability).

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******... more

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