Is it legal or allowed for a business to require a document which requires notarisation to be notarised only by a specific notary (or notary organisation)?
For example, is it legal to reject a perfectly valid Power of Attorney application or USPS Form 1583 simply because it wasn't notarised by the receiving organisations preferred notary?
A notarization is a notarization and it has a specific legal effect. Any valid notarization will do. The notary must be acting in their geographic jurisdiction and must have a currently valid notary commission at the time, but that is all, although, if the particular notary has a conflict of interest and notarized anyway, the business might be justified in disregarding it, and in some circumstances with indicia of fraud or duress or undue influence, the business might be justified in a delay to investigate the situation.
Colorado has adopted the Uniform Power of Attorney Act which at Colorado Revised Statutes ยง 15-14-720 allows someone with a duly notarized power of attorney to go to court to force a firm or government agency to recognize it and imposes liability on firms that fail to recognize it. Texas has also adopted this Act, so an almost verbatim identical provision should be present somewhere in the statutes of the State of Texas.
The circumstances under which a power of attorney may be dishonored under the Act (in addition to POAs drafted in a foreign language that must be translated) in Texas should be substantially similar to this Colorado list:
(2) A person is not required to accept an acknowledged power of attorney if:
(a) The person is not otherwise required to engage in a transaction with the principal in the same circumstances, including, without limitation, the circumstances set forth in paragraphs (a.3) and (a.5) of this subsection (2);
(a.3) The agent seeks to establish a customer relationship under the power of attorney and the principal is not currently a customer;
(a.5) The agent seeks services under the power of attorney that the person does not offer;
(b) Engaging in a transaction with the agent or the principal in the same circumstances or acceptance of the power of attorney in the same circumstances would be inconsistent with any federal or state law, rule, or regulation other than as set forth in this part 7;
(c) The person has actual knowledge of the termination of the agent's authority or of the power of attorney before exercise of the power;
(d) A request for a certification, a translation, or an opinion of counsel under section 15-14-719(4) is refused;
(e) The person in good faith believes that the power is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of counsel under section 15-14-719(4) has been requested or provided;
(f) The person makes, or has actual knowledge that another person has made, a report to a governmental agency having authority to protect the welfare of the principal stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent; or
(f.5) The person has an apprehension, formed in good faith, that the agent or person acting for or with the agent has acted or is acting, in any capacity, either unlawfully or not in good faith in dealing with the person and the person is investigating in good faith to determine whether the person may, based on the results of the investigation, form a good faith belief that the principal may be subject to financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.
The parallel Texas statutory section states:
Sec. 751.206. GROUNDS FOR REFUSING ACCEPTANCE. A person is not required to accept a durable power of attorney under this subchapter if:
(1) the person would not otherwise be required to engage in a transaction with the principal under the same circumstances, including a circumstance in which the agent seeks to:
(A) establish a customer relationship with the person under the power of attorney when the principal is not already a customer of the person or expand an existing customer relationship with the person under the power of attorney; or
(B) acquire a product or service under the power of attorney that the person does not offer;
(2) the person's engaging in the transaction with the agent or with the principal under the same circumstances would be inconsistent with:
(A) another law of this state or a federal statute, rule, or regulation;
(B) a request from a law enforcement agency; or
(C) a policy adopted by the person in good faith that is necessary to comply with another law of this state or a federal statute, rule, regulation, regulatory directive, guidance, or executive order applicable to the person;
(3) the person would not engage in a similar transaction with the agent because the person or an affiliate of the person:
(A) has filed a suspicious activity report as described by 31 U.S.C. Section 5318(g) with respect to the principal or agent;
(B) believes in good faith that the principal or agent has a prior criminal history involving financial crimes; or
(C) has had a previous, unsatisfactory business relationship with the agent due to or resulting in:
(i) material loss to the person;
(ii) financial mismanagement by the agent;
(iii) litigation between the person and the agent alleging substantial damages; or
(iv) multiple nuisance lawsuits filed by the agent;
(4) the person has actual knowledge of the termination of the agent's authority or of the power of attorney before an agent's exercise of authority under the power of attorney;
(5) the agent refuses to comply with a request for a certification, opinion of counsel, or translation under Section 751.201 or, if the agent complies with one or more of those requests, the requestor in good faith is unable to determine the validity of the power of attorney or the agent's authority to act under the power of attorney because the certification, opinion, or translation is incorrect, incomplete, unclear, limited, qualified, or otherwise deficient in a manner that makes the certification, opinion, or translation ineffective for its intended purpose, as determined in good faith by the requestor;
(6) regardless of whether an agent's certification, opinion of counsel, or translation has been requested or received by the person under this subchapter, the person believes in good faith that:
(A) the power of attorney is not valid;
(B) the agent does not have the authority to act as attempted; or
(C) the performance of the requested act would violate the terms of:
(i) a business entity's governing documents; or
(ii) an agreement affecting a business entity, including how the entity's business is conducted;
(7) the person commenced, or has actual knowledge that another person commenced, a judicial proceeding to construe the power of attorney or review the agent's conduct and that proceeding is pending;
(8) the person commenced, or has actual knowledge that another person commenced, a judicial proceeding for which a final determination was made that found:
(A) the power of attorney invalid with respect to a purpose for which the power of attorney is being presented for acceptance; or
(B) the agent lacked the authority to act in the same manner in which the agent is attempting to act under the power of attorney;
(9) the person makes, has made, or has actual knowledge that another person has made a report to a law enforcement agency or other federal or state agency, including the Department of Family and Protective Services, stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting with or on behalf of the agent;
(10) the person receives conflicting instructions or communications with regard to a matter from co-agents acting under the same power of attorney or from agents acting under different powers of attorney signed by the same principal or another adult acting for the principal as authorized by Section 751.0021, provided that the person may refuse to accept the power of attorney only with respect to that matter; or
(11) the person is not required to accept the durable power of attorney by the law of the jurisdiction that applies in determining the power of attorney's meaning and effect, or the powers conferred under the durable power of attorney that the agent is attempting to exercise are not included within the scope of activities to which the law of that jurisdiction applies.
None of those conditions concern a failure to use a particular designated notary.
USPS Form 1583 is a form presented to the U.S. Postal Service, so that only person that could honor or decline to honor it, would be the U.S. Postal Service, which does not, in fact, require that any particular notary be used.
Some businesses require something different than a notarization called a "guaranteed signature" rather than a notarization for certain transactions. A notary is not necessarily authorized to guarantee a signature (which is a private sector parallel system to notarization with greater liability for the signature verifying party who has been certified to meet the system's standards and to be solvent if a signature is erroneously guaranteed). It is possible that a notarized power of attorney would not be accepted by a business for a transaction because a guaranteed signature, rather than a notarization is what is actually required.
