The majority of the time when you’re asked to provide notary services, the circumstances will be clear-cut and you have no concerns either notarizing a document – or declining to because it would be a violation of jurisdictional rules. However, there are times when a notary public may face unusual requests, such as asking for a copy certification of a record or identification paperwork. You should always contact the official agency that issues and maintains your notary credentials, but some background can help you understand what to do when a customer presents a document that you’re unsure about.
The majority of the time, your job as a notary public is straightforward and there are few issues with checking for signatory identification, reviewing the documents and assessing willingness to sign. However, many notary professionals will be faced with a person who is unable to sign due to some physical impairment. You may have doubts about whether you can go forward with the notarial act under the circumstances, but the law in most states does make concessions for such a situation. There are multiple ways to notarize a signature and still stay within the confines of your jurisdiction’s law. Here is a look at a few options.
As a notary professional, you know your job is a critical one intended to help prevent fraud in certain transactions. You are an impartial witness to the execution of documents in situations where wrongdoing may otherwise occur, such as by the signatories misrepresenting their identity for personal gain. This is why part of the notary process is to verify identity by checking identification, according to the acceptable ID list under the laws of each state.
However, situations often arise where one or more of the signers of a document doesn’t have ID, and it’s either impossible or impractical to obtain it. You can’t expect an elderly or disabled person to go get a driver’s license or state-issued ID, especially when the individual’s physical condition results in immobility. So what do you do as a notary professional? The answer is using credible witnesses to verify the identity of the signatory, and here’s how you do it.
If you’ve ever retained the services of a notary public in connection with a mortgage, real estate transaction, estate plan, structured settlement or other transaction, you know the importance of this role. The position of a notary public in society dates back centuries; it’s such an honored, respected profession that notaries were instrumental in our early days as American colonies, and then later as a new nation seeking to cement itself as an international trade resource. Today, the job is rewarding and will keep you busy as you act as an impartial witness to execution of important documents. Fortunately, the requirements to become a notary public are straightforward.
You’re likely aware that notary services play a part in the execution of important documents related to home mortgages, car loans and in estate planning. Due to the legal nature of these transactions, you might assume that a notary public has the expertise to provide advice regarding the laws that govern the rights of the parties. However, it’s important to understand the role of a notary professional, and what they can and cannot do.
Limitations on Providing Legal Advice:
The duties of a notary public are clearly defined by statute in every state and, while the laws may vary by jurisdiction, a notary is only legally allowed to provide certain acts. Any action taken by a notary that constitutes exercising judgment or direction may be considered the unauthorized practice of law: offering legal services without being licensed as an attorney. It’s a fine line, as many of the documents that require notary services are legal in nature – a signer that asks a simple question might get a notary public in trouble. Some examples include:
- Offering legal advice or saying what a law means;
- Drafting or assisting a signer in drafting a document;
- Offering advice as to the proper notarization process to perform in executing a document;
- Providing a legal form or recommending that a certain document or form should be used for a specific transaction;
- Representing a person in a courtroom or legal proceeding; and,
- Charging a fee for what amounts to legal work.
How a Notary Public Can Avoid Unauthorized Practice of Law:
There are ways that a notary public can avoid being accused of offering legal advice, while still assisting signatories with execution of documents.
- The notary should set proper expectations with the signers of a document, clearly explaining their role and what they can and cannot do in providing notary services.
- A notary public can explain what documents they can notarize and what notary actions they take with respect to each type of document. For instance, a notary can explain the differences between an affidavit and an acknowledgment; however, the signers (or licensed attorneys) must still choose the document they’ll be signing.
- The notary can refer signers to an attorney if they have questions or would like to know more about the legal impact of the document they’re executing.
Job Duties of a Notary Signing Agent:
The role of a notary public is to verify the identity of a person signing a document and ensure they’re signing under their free will. A notary signing agent may assist with the execution of documents related to real estate, and their role is more involved. The notary signing agent is allowed by law to review an entire loan package with borrowers who are obtaining a mortgage, ensuring that all signatures are in the right place and notarized as required by law.
Whether you require a notary public or a notary signing agent will depend on the transaction, your circumstances and the laws of your state. It’s essential to consider your needs when looking at options for notary services, so you’re sure to find the right fit. You should also seek out a notary professional that provides top customer service and can assist you with proper execution of documents.
There are a number of transactions that require documents to be notarized by a certified notary public, from mortgages and car loans to will and powers of attorney. Considering the importance of these types of paperwork, you likely have questions about the legal impact of obtaining notarization. The laws regarding legal responsibilities of a notary public vary depending on the state, but there are some common factors.
Under certain circumstances, a signer is required to formally declare their acknowledgement of execution of a document. This means that the signatory:
- Understands the contents and intent of the paperwork;
- Informs the witnesses that the signature is his/her own; and,
- Signs the documents under free will and without coercion.
Documents that usually require a notary to obtain acknowledgement are deeds, powers of attorney, agreements that involve real estate and estate plans. A notary public can do so by making a statement as the signatory is executing the document, such as:
“Do you acknowledge or declare that you understand the contents of this document and have signed it of your own free will, without any coercion?”
Oath & Affirmation:
Some documents require the signer to swear to a notary that the contents are true. This constitutes a pledge to verify the statements made in the document, typically within a written affidavit where the signatory has supplied certain facts. Documents filed with a court commonly require that a litigant swear under oath that the statements made within are true and correct.
As with an acknowledgment, the notary must make a statement as the document is being signed, such as:
“Do you swear/affirm under the penalties of perjury, that the information contained in this document is the truth?”
Lawful Notarization: Key Elements
There are critical elements of a notarization in order to ensure the notary services are considered legally sufficient.
- The signatory to the document must be physically present before the notary public. The purpose for physical presence is so the notary can properly assess the signer’s understanding of his/her actions and willingness to sign.
- The person signing must be personally known to the signatory, which typically requires the notary public to review a government issued ID.
- The document being signed and notarized must be an original, i.e., is completely unsigned before presentation to the notary. Any copies of a document that include a photocopy of a signature cannot be notarized because they would not be considered original.
- There must be notarial language demonstrating that the notarial act occurred contemporaneously with the execution of the document, such as “Subscribed and sworn to before me this [date].”
- The notary is required to apply their notarial seal alongside the notarial language.
It’s critical that you have an understanding about the legal responsibilities of a notary public and the role these professionals play when you’re executing important documents. As such, you should make sure to choose the right notary services to suit your needs. When considering your options to retain a notary public or notary signing agent, look for those that provide quality customer care and professionalism to ensure proper execution of relevant documents.
How to Become a Notary Public
If you’ve ever used notary services to obtain a mortgage, draft a will, receive a structured settlement or for other transactions, you know the importance of the notary public’s role in executing the documents. A notary professional serves as an impartial witness in certain transactions to protect against fraud in the signing of critical paperwork and, as such, is an official of high integrity. The job is rewarding and will keep you busy, so check out what you need to do to become a notary public.
Anyone who is over the age of 18 and does not have a criminal record may become a notary public. In addition, you must be a legal resident of the state where you’re seeking a notary commission in order to qualify to provide notary services. As part of the application process in your state, you’ll supply this information under oath, swearing as to the accuracy of the statements.
As a practical matter, you should be fluent in reading and writing English to properly perform notary tasks, which involve communicating with the people who will be signing the documents. You’ll also need to arrange for your notary seal or stamp in order to officially certify a notarial act.
Each state has different laws regulating notary public services, so you should check with your jurisdiction to find out exact requirements. In most states, you work with the Secretary of State’s Office to file your application, pay fees, receive your commission and handle renewals.
In some states, you may have to complete training and/or pass an exam regarding your position as a notary public. Other states have such requirements as:
- Filing a passport-style photo with your application;
- Obtaining a copy of your fingerprints;
- An application fee;
- Proof of bond coverage in the designated minimal amount, usually around $15,000; and,
- Keeping a notary journal to track all transactions where you’ve provided notary services.
Your Job Once You Become a Notary Public:
Upon receiving your notary credentials and meeting all requirements of the state where you’re commissioned, you’re now ready to notarize. Your job will include:
- Verifying the identity of parties executing documents;
- Ensuring that the signatories are acting on their own, and not under duress or intimidation; and,
- Making sure that the people signing the documents know what the contents are before signing.
Situations where you may be called upon to provide notary services also vary by state law, but typically include conveyances of real estate, execution of will and estate planning documents, powers of attorney, structured settlement paperwork and some court documents. Plus, there are other transactions where parties may seek notary services, even if not required by law.
Your role as a notary public is an important one, which is why there are general and state-specific requirements in order to be certified to provide notary services. Once you’ve obtained your notary public credentials, you can work for any one of a number of professional notary services to advance your fulfilling, satisfying career.
Much like the laws governing other professions that require certification, regulation of the notary service industry is constantly changing. Whether you’re a notary professional or you deal with notaries in the course of your business, it’s smart to know the recent law updates so you can stay current with new requirements. Each state has different rules, so these laws will vary in their impact upon various transactions. Here are some of the key changes that pertain for notary publics and notary signing agents. (more…)
You might have heard the terms “notary public” and “notary signing agent” tossed around together, but the truth is that the two positions are quite different. There are certain transactions and situations where you would choose one or the other, so it’s important to find the right fit with a notary professional. While you should consult with relevant experts to determine whether a notary public or signing agent will serve your needs, you can benefit from some general information on how these two roles operate.