Submission Date:
Question:
A patron came in and asked me to “witness a signature.” He was signing some bank document, but it didn’t need to be notarized, just witnessed. I realized he wasn’t signing his name, and when I asked him about it, he said that it was his aunt’s name and he had a Power of Attorney - he showed me those documents, so I ended up signing as a witness. But I felt uncomfortable about it. My understanding is if you have a POW, you should be signing your own name, not forging the signature of that other person. I asked my wife who is an attorney about it, and she said I shouldn’t have signed as a witness. This is a regular patron of ours, so I’m concerned not only that this will come up again, but that I will get pushback if I refuse to sign as a witness.
Answer:
I have good news: the attorney you married really knows her stuff!
Of course, that means I also have bad news: the document you witnessed is probably invalid!
Of course, without a detailed review of the actual document, I can’t say for sure. But in general, when a person is signing with “power of attorney,” they sign not as the person they are authorized to sign for but as themselves.
The relevant section of the “General Obligations Law” which governs the power of attorney in New York State, is highlighted below this answer.
So, how do you avoid pushback in the future?
A good practice for the library, going forward, is to have a policy on staff members being subscribing witnesses to a document.[1]
There are several options for this, that run the gamut from “we don’t do that,” to “sure, we do that!”
Here is a simple policy statement for “we don’t do that:”
Because library services are confidential, and because it would require checking identification and record-keeping beyond the scope of normal activities, employees are instructed to not perform services as subscribing witnesses during work time.
Here is a simple policy statement for “we don’t do that” when the library does offer such services:
The Library only offers services of a subscribing witness as governed by our Notary Public Policy.
Here is a simple policy statement for “sure, we do that:”
Library employees are instructed to only perform services as subscribing witnesses during work time if the signature and name being attested to matches the name on the signer’s government-issued photo identification.
I appreciate that the patron, probably without intending to do so, put you in an awkward position.[2] With one of the above options being the official position of the library, that can be avoided in the future.
Thank you for trusting “Ask the Lawyer” with this question!
Here is that section from the NY General Obligations Law:
§ 5-1507. Signature of agent
1.
(a) In any transaction where the agent is acting pursuant to a power of attorney and where the hand-written signature of the agent or principal is required, the agent shall disclose the principal and agent relationship by:
(1) signing “(name of agent) as agent for (name of principal)”; or
(2) signing “(name of principal) by (name of agent), as agent”; or
(3) any similar written disclosure of the principal and agent relationship.
(b) A third party shall incur no liability for accepting a signature that does not meet the requirements of this subdivision.
2. When the agent engages in a transaction on behalf of the principal, the agent is attesting that:
(a) the agent has actual authority to engage in the transaction;
(b) the agent does not have, at the time of the transaction, actual notice of the termination or revocation of the power of attorney, or notice of any facts indicating that the power of attorney has been terminated or revoked;
(c) if the power of attorney is one which terminates upon the principal’s incapacity, the agent does not have, at the time of the transaction actual notice of the principal’s incapacity, or notice of any facts indicating the principal’s incapacity.
(d) the agent does not have, at the time of the transaction, actual notice that the power of attorney has been modified in any way that would affect the ability of the agent to engage in the transaction, or notice of any facts indicating that the power of attorney has been so modified.
3. The attestation of the agent pursuant to subdivision two of this section is not effective as to any third party who had actual notice that the power of attorney had terminated or been revoked prior to the transaction.
[1] Which is different than being a subscribing witness as a Notary Public, which we addressed in Liability Insurance for Notary Services.
[2] Awkward, but not criminal. No matter what was going on in their mind, you clearly had no intent to defraud.
