More times than I can count since I started practicing law, I have been involved in lawsuits in which the authenticity of a signature on a document was a primary disputed issue in the case. Whether our law firm was representing the plaintiff who was suspicious of a signed document, or instead representing the defendant who was insisting upon the validity of a signed document, many of these situations entailed questions over how and/or when a notary public witnessed a person's signature. The types of documents involved (e.g., wills, trusts, deeds, contracts, etc.) is as varied as the types of alleged misconduct (e.g., never actually witnessing the signature, backdating a document, failing to properly identify a signer, willfully stating as true a material fact known to be false, etc.). Make no mistake---there are laws governing notaries and their actions, but for some reason often many notaries can get somewhat loosey-goosey regarding their obligation to strictly follow the letter of the law.
In any event, on October 22, 2009, the Arkansas Supreme Court intervened in such a dispute and reversed a trial court's ruling that a power of attorney transferring real property was valid. In Jones v. Owen, 2009 Ark. 505, an appeal from Sebastian County Circuit Court, the Court considered a case involving disputed land, a father's will, and that father's power of attorney. You can guess what happened, of course . . . the will said that the land went to X while the power of attorney ultimately resulted in the land being conveyed to Y. Litigation ensued and the trial court ruled that the power of attorney was valid.
In overturning that decision, the Arkansas Supreme Court concluded that the power of attorney was not valid and did not authorize the property to be transferred. Specifically, in this instance the power of attorney was apparently acknowledged by a notary public prior to the decedent ever signing it. That is, the notary public had signed the acknowledgment and left the date blank, which was later filled in by the attorney handling the transaction. The Court ruled that in some circumstances a signature could be notarized without the notary public physically being there to witness the signature (e.g., after signing a grantor can appear before a notary and acknowledge his signature, a grantor can acknowledge his signature via a telephone call with the notary, etc.). However, if the grantor never appears to acknowledge his signature, but the notary falsely certifies that the grantor did appear, then the acknowledgement will be deemed void.
Moral of the story: Notaries have a tremendous amount of power, as they add a significant measure of validity to the execution of documents which record major financial transactions and carry out a person's final wishes regarding their property. Those powers should not be exercised carelessly, much less fraudulently. Jones v. Owen appears to be a clear message from the Court that it will require notaries to strictly comply with their legal duties, and that the Court will not hesitate to set aside transactions when warranted under the facts and circumstances.