Power of Attorney Agent
Colorado statute CRS 12-55-208 provides several short forms of acknowledgment, including a power of attorney agent (attorney in fact). The use of the statutory short forms does not preclude the use of other forms.
Colorado Notary Training classes must teach the duty to include a notarial certificate on a notarized document. This means that the document must include an acknowledgment, or a jurat (oath or affirmation), or a copy certification before it is notarized.
For an individual signing in his/her own right, the form reads: “The foregoing instrument was acknowledged before me this [date] by [name of person acknowledged].” The notary must verify the identity of the signer using satisfactory evidence such as personal knowledge, a government-issued photo identification (driver’s license, military ID, passport) or a credible witness.
Attorney in fact, agent
When an individual is signing under authority as a power of attorney agent, the form reads: “The foregoing instrument was acknowledged before me this [date] by [name of attorney-in-fact] as attorney in fact on behalf of [name of principal].”
Colorado law does not specify a procedure for verifying the representative capacity of a person to prove they are currently authorized to sign on behalf of a principal as a power of attorney agent. The verification procedure is not found in the 2010 Model Notary Act.
Colorado statute CRS 12-55-207 defines “Acknowledged before me” to mean that a person acting as a principal by an attorney in fact executed the instrument by proper authority as the act of the principal for the purposes therein stated.
Evidence of Representative Capacity
The Colorado Notary Handbook states: “For some acknowledgments, client identification may have a second part. A signer may be acknowledging in a representative capacity. In such cases, the notary should identify the individual AND his or her capacity.”
A prudent notary should always use reasonable care.
The National Notary Association (NNA) Bulletin and Notary Home Study Course states: Determining a signer’s authority to sign may be done through personal knowledge, by documentary proof or by vouching under the oath or affirmation of the signer or a credible witness.
Documentary evidence of the authority of the signer to act as a power of attorney agent might be shown by viewing the original power of attorney document, or a certified copy, or a certificate of authority.
Since the authority of a person to act under a POA could be changed, terminated or revoked at any time, documentary evidence may not be current or reliable. A non-durable POA will terminate if the principal becomes incapacitated. A durable POA will continue if the principal becomes incapacitated. A POA will terminate when the principal dies or the purpose of the POA has been completed. The agent might also resign or die.
Affidavit of Authority
An Affidavit of Authority, sworn under oath or affirmation, under penalty of perjury, by the principal or agent, would provide testimonial evidence that the authority of the power of attorney agent is valid and current.
The notary should make a note in the notary journal of the type of evidence of authority that was used. The notary should decline to notarize if satisfactory evidence is not available.
Note: Some states, including California, do not allow a notary to verify the capacity or authority of a signer, only to verify identity.
Colorado Notary Training teaches required elements to help the notary avoid errors and omissions and provide good customer service to the public.