What is a Notary Public?
Most people believe that notaries simply “notarize signatures.” This greatly oversimplifies a notary’s duties and responsibilities. In carrying out his or her duties, a notary not only follows what is dictated in state law but exercises subjective judgment on matters such as the state of mind of the signer, the signer’s comprehension of the transaction, or whether fraud or coercion are present.
The most typical notarial transactions involve the execution (signing) of documents. In order for documents requiring a notarial act to be properly executed, the signer must physically appear before the notary, prove his/her identity to the notary, and acknowledge his/her comprehension of the document and willingness to sign OR swear/affirm that the contents of the document are true. The required notarial act is determined by the composition of the document or is at the direction of the signer or other party involved with the document—it is not determined by the notary.
The notary conveys the facts of a notarial act/transaction by completing an official statement called the “notarial certificate.” The notarial certificate is always signed, and often sealed (depending on state requirements) by the notary. The notarial certificate commonly appears at the end of a document or is attached to the document as a separate sheet. The most familiar notarial certificate language reads substantially like: “Acknowledged before me by (Signer’s Name) this (date) day of (month), (year)” or “Sworn/affirmed and subscribed (signed) before me this (date) day of (month), (year).”
The “golden rule” of every notarial act, whether it is paper-based or electronic, is the physical presence of the signer before the notary. A notary’s ability to fully evaluate a document signer’s identification, basic understanding of the transaction and free will would be diminished by any condition other than physical presence of the signer. No alternative, such as an audio/video connection, can provide the notary with full sensory experience that physical, personal presence allows.
Notaries derive their authority from their state governments. They are “appointed” or “commissioned” by a top official of their state, generally the Governor, Lieutenant Governor, Secretary of State or Treasurer. Each state has its own unique notary laws and notaries must follow the laws of their particular state. This means that notaries in one state may have authority to perform duties that notaries in another do not—it depends completely on each state’s notary laws. There is no corresponding or overriding federal law governing notaries.
A notary’s specific, authorized duties vary by state but can include:
• Administer oaths and affirmations;
• Take and certify the acknowledgment of a document;
• Take and certify affidavits;
• Take and certify depositions;
• Issue protests of notes and bills;
• Witness the opening of safe deposit boxes and certify a list of contents;
• Perform civil marriage ceremonies
A notarial appointment is a privilege, not a right. A notary is subject to disciplinary action as well as suspension or revocation of his/her commission. A notary may perform notarial acts ONLY while his or her commission is current. The length of a notary’s commission term varies by state, but is commonly four years and runs until 11:59 p.m. of the date of expiration. Most all completed notarial certificates will bear a stamped or handwritten notation that includes the notary’s commission number and commission expiration date.
The format of a notary public’s seal, and whether or not a notary is actually required to use a stamp or embossing tool, is unique to each state and is set forth in each state’s notary laws. See “Notary Information by State” on www.ASNNotary.org.
Copyright ©2005 - 2013 • American Society of Notaries