Declining a Notarization

Declining to Perform a Notarial Act
ASN Hot Tip, January 2008-#2

Under what circumstances may I decline to perform a notarial act for a client?

A notary is, first and foremost, a public officer. He must be prepared and willing to carry out his duties for a client who requests a notarial act that is authorized by the state in which he is commissioned, if all elements for performing the notarial act are in place.

The following is a list of common reasons or situations that may cause a notary to decline to perform a notarial act. It is not an exhaustive list. No list can contain all the situations in which a notary might find himself.

You may decline to perform a notarial act if:

• The notary believes that the transaction is fraudulent in some way.
• The document is not eligible to have a notarial act performed over it, i.e.
  • The notary has not been given all the pages of the document.
  • There are blank spaces in the document that appear to be germane to the signer’s understanding of the document, and the signer doesn’t know what information belongs in these spaces.
  • The date on the document is later than the date that the notarial act would take place.
• The client appears to be confused.
• The client does not understand the contents of the document well enough to execute the document by signing it.
• The signer is apparently being coerced to sign a document that she does not want to sign.
• The document signer does not have identification as required by state law.
• The notary believes that the person standing before him is not the person whose name is on the document.
• The client has come to the notary at his place of employment with a document for a type of transaction that the notary’s employer has instructed him not to consider for a notarial act.
• The notary is not authorized by state law to perform the requested notarial act.
• The client’s request is not a notarial act at all.
• The client refuses to pay the notary’s authorized fee for performing a notarial act.
• There is someone else present who appears to have some sort of control over the signer.
• The client wants the notary to travel to perform the notarial act, and the notary is not a “mobile notary.”

Don’t guess at what you should or should not do when faced with an unusual situation. Don’t take the advice of the client or another notary who works with you. These people may mean well, but they also may give you incorrect information. If you are uncertain whether you should proceed with a notarial act, call ASN—We’re here for you!
 
Questions, comments on this Hot Tip?  Email support@asnnotary.org

What to Say When the Notarization Must Stop
American Notary Newsletter, Issue 2004-#4

ASN strongly advocates use of a step–by–step approach to executing notarial acts. Establishing a routine and following it, sticking to the rules of notarization, and making no exceptions are the best proactive measures you can take to avoid liability and charges of wrongdoing.

These “Steps to an Expert Notarization” will have the notary ensuring that all required elements of a lawful notarial act are present. If any required element is missing, the notarization cannot continue. 

It’s of paramount importance that you tell the document signer firmly, clearly and tactfully anytime you must stop a notarial act because of a missing required element. The general public tends to greatly misperceive a notary’s function and duties, so telling a signer you can’t proceed with a notarization—and why—can be a problem.

To help you with these occasional challenges, ASN has formulated simple, straightforward comments addressing the most common reasons for stopping a notarization mid-act. With the steps to an expert notarization as a guide, let’s review what you might say to a signer if the notarization must stop.

Step 1 - Require Personal Presence
The person who has or will sign the underlying document and to whom you will administer an oath or acknowledgement MUST be physically present before you. If someone else is urging you to complete your notarial certificate for a signer who is not physically present, the notarial act never even gets off the ground. Try saying: 

I would like to help you, but it is illegal for me to perform a notarial act for someone who is not physically present. The document signer must be present before me.

Step 2 - Examine the Document
The notary examines the document to determine the name of the person requiring a notarial act, as well as to check for document completeness (no blanks, no missing pages) and an appropriate document date (not later than the date of notarization). 

If you’re presented with a document that’s missing pages, you can say: 

I am required to examine all the pages of this document to determine if we can proceed with this notarization. If I cannot examine all the pages, I cannot proceed. Please bring me all the pages.

If you’re presented with a document containing blanks, indicating that the document has not been completely filled out, say:

This is an incomplete document because of these blanks, and I cannot proceed with notarization unless you can fill them in. If you don’t know what to put in the blanks you may call whoever created the document or whoever will receive it. It is illegal for me to tell you how to fill-in these blanks.

NOTE: In this circumstance, you may even want to tell the signer that this measure is for his or her own protection. Blank spaces can later be filled-in fraudulently, with information that is untrue or harmful to the signer.

The document must be dated ON the date of notarization or BEFORE it, but NEVER after. If the document’s date is any day after the notarization, you should tell the signer:

I cannot perform a notarial act involving a document that does not yet exist. This is dated (give the date on the document), and it will not be in effect until that date.

Step 3 - Positively Identify the Signer
Notaries help prevent fraudulent transactions by ensuring that the person present for the notarial act is the person who is named as the document signer. You must positively identify the signer by your personal knowledge of his/her identity, by identification documents, or by the testimony of a credible witness. You must know your state’s specific requirements for positive identification. If you cannot identify the signer to your satisfaction, say:

I can’t continue with this notarization because you have not presented what the state allows me to use to verify your identity. To positively identify you, I need to see one of these documents….

NOTE: In this case, you may also explain the possibility of using a credible witness in states that allow it.

Step 4 - Record the Notarial Act in your Recordbook
In states that require you to use a recordbook, you must obtain the information necessary to complete your recordbook entry or the notarization cannot proceed. Do not save this step until last, or you risk having the signer leave since he/she needs nothing further from YOU. If your use of a recordbook is a choice, not a requirement, then a signer’s possible refusal to sign your recordbook would not be a reason to stop the notarization.

Step 5 - Perform the Verbal Ceremony
For an oath, ask the signer: “Do you swear under penalties of perjury that the contents of this document are true, so help you God?”  For an affirmation, ask: “Do you affirm the contents of this document are true?” For an acknowledgment, ask: “Do you acknowledge signing this document willingly, for the purposes stated within it?” If you fail to execute a verbal ceremony, or if the signer refuses to answer, then you cannot complete your notarial certificate truthfully because the certificate wording clearly indicates a verbal oath/affirmation was taken or acknowledgment was made. Tell your signer:

I’m sorry, but if you cannot or will not answer “Yes” to these questions, then the notarization is not complete and I can’t sign and seal my official statement. For your own protection, you should answer “Yes” to these questions only if you mean it.

Step 6 - Complete the Notarial Certificate
The notarial certificate is your official statement about the notarization. If you have gotten this far, there are no more barriers to completing the notarial act. Complete, sign and seal your certificate. 

Protect yourself by following these steps. Don’t hesitate to stop the process if a requirement for notarization hasn’t been met. Explain to the signer why the notarial act cannot be completed. Keep your explanation simple and clear.
 
Questions, comments on this Hot Tip?  Email support@asnnotary.org

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