I’ve been asked to notarize the transfer of a burial plot. The signer had a POA for her dad. So far, it’s pretty convoluted, as I’ve not seen the documents, but this plot seems to have pass down through some generations. The thing that concerns me is that the POA is for the father, who lives in a nursing home. The home refused to notarize the documents because he failed a memory test (according to the daughter). But if the daughter has a POA, why would that matter? HIPPA prevents the home from discussing this matter with me. I did call a local mortuary and verified taking a POA is standard practice.
Here’s my take, I’d like to run past you all:
if the POA is valid, and dad’s name is now on the burial plot, then it should be fine to notarize. If any other name but dad’s is on the plot, then it is not fine.
Agree with Joe. Just went thru this a couple years ago and it can get messy, especially when several generations are involved. But, as long as he’s competent, has valid ID, notarize away. The legalities are not in your wheelhouse.
Thank you, both. Kind of what I thought: that as long as the names turn out okay, that’s my job. I did some research on plot transfer as well. I learn a ton doing this. It’s good, because I’m new, and therefore paranoid, so I tend to look up everything. You guys are also a wealth of experience!
Dunno. But, in most states, (if not all), the notary should not play lawyer and want to ‘see & decide’ what the POA actually says. That distinction is Atty in fact’s problem..& their risk.
That’s what I couldn’t figure out. POA is for the situations where someone needs help, or of course is not there due to military; but of course being mentally unfit is a reason for a POA. So why would the home give him a test if he has a POA? But of course they cannot discuss this with me. So I’ll have to see the form first and determine if the POA is legit and the atty-in-fact has appropriate ID. According to the mortuary I called, they do accept POA for transfers, and transfers are common.
Yes, it’s the daughter who is POA. I called a local mortuary to enquirer if this is an acceptable way to transfer and they said they accept POA’s for plot transfers. I think my biggest question, when I finally see the paperwork, is who’s name is listed as the owner, and is there more than one name.
Best advice is to stay in your lane. What is somewhat curious is the daughter wanting you to notarize Dad (who is incompetent per NH), when it is she who will be signing as his AIF, and has the liability for doing so. Sounds like she doesn’t quite understand that. Good luck and keep good records.
As to #1 - you’re right, if daughter is signing as AIF for father, then it should be fine;
As to #2 - if multiple names appear on the plot, then you notarize for the person in front of you only. The others will have to make their own arrangements - unless you can get everyone together with you.
Yes, an attorney-in-fact can sign a transfer of a burial plot form, but only if the
Power of Attorney (POA) document explicitly grants that specific authority while the principal is alive. The authority must be clear and not merely implied by general powers.
Key Considerations
Explicit Authority Required: The power of attorney document must contain specific language authorizing the agent (attorney-in-fact) to transfer real property, make gift transfers, or change beneficiary designations, as a burial plot is considered a form of real estate or a contract right. A general power may not be sufficient for a cemetery or title company to accept the transfer.
Principal Must Be Alive: The power of attorney is only valid while the person who created it (the principal) is alive. The attorney-in-fact cannot use the POA to transfer the plot after the principal has died.
Fiduciary Duty: The attorney-in-fact must act in the best interest of the principal when making any transfer, not for their own benefit, unless the POA explicitly allows for self-gifting, which is rare.
Check Cemetery Rules and State Laws: Contact the specific cemetery to understand its requirements for transfer, as they often have their own procedures and may require a certified copy of the power of attorney. State laws also vary on the specific language required in a POA for such transactions.
Consult a Lawyer: Because of the legal complexities and potential for issues, especially if the principal is incapacitated, it is best to consult with an estate planning or real estate attorney in your jurisdiction for guidance to ensure the transfer is valid. The attorney can review the POA and advise on the proper procedure.
So what does this have to do with notarizing a document? As notary you are only verifying the identity of the signer, and not that the document or the POA is legal or valid. California acknowledgements even include a disclaimer to this effect. Any challenges to the validity of the agent, mental capacity of the principal (who is presumably not present) or the document are not for us to validate.
