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socrateaser
socrateaser, Lawyer
Category: Legal
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Experience:  Retired (mostly)
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I have Power of Attorney for my mother that covers business

Resolved Question:

I have Power of Attorney for my mother that covers business and health. I have submitted this document many times for different situations involving health and money. Today I requested a signature card from one of her banking institutions to pay her bills and was denied. Can you advise if
the signature on the Power of Attorney is proper?
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
Hello,

I can review the power of attorney, if you like. You would have to upload a scan of the form in .pdf format to http://www.mediafire.com, and then provide a link to the file in your next Reply.

You cannot send the form to me directly. Once I have reviewed the file, you can delete it from the website so that it cannot be read by anyone else.

Thanks in advance.
Customer: replied 1 year ago.

Please allow to describe the dispute the banker presented, then if this not sufficient, then I'll try the scan. Everything is in order I was told with the exception of the last page. There we have: STATE OF NEW MEXICO COUNTY OF BERNALILLO ss: This instrument was acknowledged before me on this 17th day of June 2000, by Mike Ahlers. Official Seal and Notary Signature: Mike Ahlers


 


This document was prepared by:


 


Stuart Gottlieb, Atty (deceased)


 


Theie argument is it should have mother's name in acknowledgement area.


 

Expert:  socrateaser replied 1 year ago.

NMSA 45-5B-105. provides, "A power of attorney must be signed by the principal or in the principal's conscious presence by another individual directed by the principal to sign the principal's name on the power of attorney. A signature on a power of attorney is presumed to be genuine if the principal acknowledges the signature before a notary public or other individual authorized by law to take acknowledgments."

Based upon the statement above, it would appear that a power of attorney in NM requires the signature of the principal in a section of the instrument as making the appointment -- followed by a second signature of the principal showing that they have acknowledged their original signature before a notary public -- unless the instrument was signed before the notary public at the same time as the acknowledgement was made.

 

The proper form of acknowledgement is as follows (NMSA 14-14-8):

 

State of ____________________________________________
(County) of ________________________________________
This instrument was acknowledged before me on (date) by (name(s) of person(s))
(Signature of notarial officer)
(Seal, if any)
Title (and Rank)
[My commission expires: ________];



Hope this helps.

Customer: replied 1 year ago.

It does. I failed to describe the following: There are 4 pages, each initialed by my mother. The 3rd page has her signature, date, time and initial after the following: This Power of Attorney shall become effective immediately, and shall not be affected by my disability or lack of mental competence, except as may be provided otherwise by an applicable state statute. This is a Durable Power of Attorney. This Power of Attorney shall continue effective until my death. This Power of Attorney may be revoked by me at any time by providing written notice to my Agent (me)


 


It was signed in the presence of attorney and notary, who signed on the next page (4th), which was initialed by mother. No space on the 3rd.

Expert:  socrateaser replied 1 year ago.
Okay, well it seems valid to me. NMSA 14-5B-120 describes your recourse against the bank for refusing to accept the power of attorney. However, if this bank is an NA (national association/bank), then most state laws concerning the bank's operations are preempted by federal law, and you will probably never be able to pierce that immunity, because the case law favoring the banks is expansive, and the cost of an attorney with sufficient knowledge to try to overcome that case law will be just as expansive. So, if that's the situation, then you need your parent to acknowledge the instrument separately (which could be done with nothing more than a thumbprint, if necessary), because that's the only way you will be able to move forward with the account.

Hope this helps.
Customer: replied 1 year ago.

Yes. You remain a fantastic help. Thank you.

Expert:  socrateaser replied 1 year ago.
You're welcome and good luck!
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 34836
Experience: Retired (mostly)
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