Submissions on Notarial Laws - Essay Example

s on Notarial Laws a. A Notary forms part of a system required to verify documents especially as counsel in the matter cannot affirm a document . One might get an idea of the role of notaries from two conflicting statements made by the Courts in US . "The notary possesses a great deal of independence and discretion over the execution of his notarial acts."1 The other quote possibly is more realistic as it reflects in some ways the general perception of notaries in our legal system. "A notary's duties . . . are essentially clerical and ministerial."2 Results of various surveys reveal that there is a lot of confusion among lawyers and notaries as to what exactly their extent of power and duty is and whether it is a legal duty3 of a notary to ensure that the Signor has comprehended the contents of the document he is signing. On one hand, no state statute and only one state court opinion announces that notaries are required to make such determinations. 4 Conversely, many notary authorities are quick to advise notaries that they possess just such a duty. Much of the confusion is due to the understanding of the words "competence" and "comprehension". Even if it were agreed that notaries should judge whether document signers comprehend the documents being executed, precisely what does that mean' What is the legal test of whether a signer comprehends a document being executed' One version of a legal standard for a signer to comprehend a document is whether the signer understands both the detailed substance of the terms of the document and the practical and legal consequences of the instrument. If this is the test, the mental competence of the signer would necessarily be implicated, for a signer could not possibly comprehend the full meaning and import of a document if the signer were mentally incapacitated. 5Obviously though, even a competent individual might not comprehend a particular instrument. Further, substantial confusion is caused by the imprecise use of the concepts of "competence" and "comprehension."6 As suggested above, while competence refers to one's ability to understand the nature and consequences of his/her transactions generally, comprehension refers to one's actual understanding of the nature and consequences of the particular transaction.7 Yet, these definitions are regularly substituted for one an other, just as the terms competence and comprehension are in artfully interchanged as though they were synonymous. 8 Now, the entire discussion leads one to the most important moot point of notaries verifying Power of Attorney documents. There can be no doubt that power of attorney is the most powerful document as it entrusts someone with all powers of another to represent him and act completely on his behalf .Therefore , it is necessary that signing of such document is duly notarized and validated as it may be tool of defrauding people This is essentially why it is so vital to ensure that such super powerful documents are notarized and following the reasoning already laid out in this paper , in matters of such importance , the notary public should try and find out if the signor is competent to sign and also has comprehended what he is signing . A possible version of the legal test of document signer comprehension is that the signer appreciates merely the general nature of the document (i.e. the kind of instrument being executed). Not only do the authors not object to the imposition of a duty on notaries consistent with this notion of document signer comprehension, but we endorse it. 9 However, one may safely presume it is the former definition of document comprehension, or a comparable meaning, that the proponents of a duty of notaries to determine document signer comprehension have in mind.10 For example, in his book Notary Public Handbook, Alfred Piombino seems to advocate such a heightened duty for the notary, for he suggests (during his discussion of "competency") that the notary should inquire into the signer's understanding of "the nature of the act to be performed" as well as its "seriousness."11 Piombino also writes that the notary is to make "a reasonable person's assessment of the individual to comprehend the nature of the matter."12 Hence, although Piombino does not make his position perfectly clear, he appears to demand that notaries do more than merely assure signers understand the kind of instrument they are signing. It is therefore concluded that since Power of Attorney is a document through which wide powers of representation and action are delegated , the Notary Public should be extra careful and not only should he check the competence of the Signor but also that the signor knows what the document means and its longterm and short term implications .and therefore , he should ideally try and ensure that the signor comprehended what he signed . b. Requirements for Power of Attorney I. Mr. Jones will be advised to first decide the kind of powers he wants to delegate.To recover loans in countries like India and Jamaica which draw their laws from the English common law , it is vital that the attorneys are given full power to sue especially at various Debt Retrieval Tribunals , also ensure that it can float special Purpose vehicles to do get rid of loans through securitization or debt restructuring .But that will require a certain degree of director involvement . Country like Kazakhstan with its closed doors policy might require more caution and definite contact with the embassy there. Also for Florida it will require powers of Settlement and power to negotiate with other creditors in order to retrieve debt. Also general winding up proceedings even under the Bankruptcy Code requires civil action in Courts of Law. General European law requires essentially conformity with EC regulations on Bankruptcy and insolvency, but the Power of Attorney should have powers to take legal actions on grounds of insolvency against the parties in question .However , it is advisable that the powers should also include powers to negotiate especially in order to succeed in the Off -balance Sheet finance method. II. The execution in India and Jamaica will be similar with both requiring a source of verification and an execution in the register of the high Courts of any of the states in India .Also it is advisable to do a verification in the respective British Embassies as that would be the safest way of execution .Once a High Court or if the pecuniary value is not so great the civil courts stamp their authority on its validity , there cabn be no further question on the validity of such power of attorney .In US and especially Florida this rule will be applicable on state laws and will require some degree of certification from the district Courts .But ideally , again a notarized Power of Attorney , once validated by the embassy there will be absolutely acceptable , even though recording it with a Court of Law is the right way around it .Spain will be easier as it also requires notarization but as long as it follows EC regulations , it will be easily acceptable . III Firstly any decision to issue Power of Attorney to lawyers in various countries should be duly passed by a Meeting of the Board of Directors .That resolution of such a meeting should be given to the lawyer or the notary , as only then such can be verified .More so because otherwise there is always a chance for corporate fraud and the one to be held prima facie liable will be the notary verifying it . IV A definite formality required will be to get it verified in the respective embassies of these countries and the UK embassies in those countries .Ideally some background research and a declaration or affidavit should be taken from these respective lawyers while informing the various parties involved to the extent of powers of these lawyers .As has already been pointed out , these lawyers will need to have considerably wide powers in order to effectively retrieve debt especially in systems like India's and Jamaica's where the proceedings are not advisable as they are just too slow and ineffective . The various formats of Notaries in India, Florida and Jamaica are as follows:- INDIA:- NOTARIAL CERTIFICATE13 TO ALL TO WHOM THESE PRESENTS SHALL COME, I, _______________________________________ Advocate, ____________________________________ duly appointed by the Central Government and practicing s a NOTARY in the ________________________ of the State of ____________________________within the Union of India, do hereby declare and certify that the Paper Writings collectively marked as 'A' annexed hereto, hereinafter called the "Paper Writings A" are presented before me by the executants (s), Hereinafter referred to as the "executant (s)" on this the day of Two Thousand and Six. The "executant (s), having admitted the execution of the "Paper Writings A" in respective hand(s), in the presence of the witness (es), who as such, subscribe (s), signature (s) thereon, and being satisfied as to the identity of the executant (s), and the said execution, I have authenticated verified and attested the execution of the "Paper Writings A" and testify that the said execution is in the respective hand (s) of the executant (s). AN ACT WHEREOF being required of a Notary, I have granted THESE PRESENTS as my NOTARIAL CERTIFICATE to serve and avail as need and occasion shall or may require. IN FAITH AND TESTIMONY WHEREOF I, said Notary, have hereto set and subscribed my hand and affixed my Notarial seal on this the day of 200 . Sd/- Name Notary Govt. of India. Regd No. of Notarial Stamp Dist - Address of the Notary's Office FLORIDA CERTIFICATE OF TRUE COPY14 STATE OF FLORIDA COUNTY OF _________ On this _________ day of _________, 19____, I attest that the preceding or attached document is a true, exact, complete, and unaltered photocopy made by me of _________(description of document) _________ presented to me by the document's custodian, _________, and, to the best of my knowledge, that the photocopied document is neither a public record nor a publicly recordable document, certified copies of which are available from an official source other than a notary public. NOTARY PUBLIC-State of Florida sign_______________________________ print______________________________ (Seal) ' ' JAMAICA CERTIFICATE OF TRUE COPY TOWN OF KINGSTON JAMAICA On this _________ day of _________, 19____, I attest that the preceding or attached document is a true, exact, complete, and unaltered photocopy made by me of _________(description of document) _________ presented to me by the document's custodian, _________, and, to the best of my knowledge, that the photocopied document is neither a public record nor a publicly recordable document, certified copies of which are available from an official source other than a notary public. NOTARY PUBLIC-Town of Kingston. Jamaica sign_______________________________ print______________________________ (Seal) Read More