Legal Responsibilities of a Notary Public

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.

Acknowledgement:

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.

Can Notaries Give Legal Advice?

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.

Using Credible Witnesses

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.

A Guide to Notarizing for Physically Impaired Signers

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.

Handling Certified Copies of Public Records and Other Unusual Notary Requests

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.

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