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Document Issues

Managing Unusual Documents
American Notary, Issue 2008-#4

Notaries are often asked to perform a notarial act over an unfamiliar or confusing document, or a document that contains unfamiliar notarial certificate language. In fact, a significant number of ASN’s members-only hotline calls deal with questions about these unfamiliar documents and strange notarial certificates. How is a notary supposed to handle these tricky situations?

There is NO substitute for being familiar with your state’s notary public laws and administrative rules. The laws of your state apply to all notarial acts whether familiar and safe or unfamiliar and confusing. Print a copy of your state’s notary laws to read and to have by your side when you perform notarial acts. ASN has collected state specific information pertaining to notaries on our web site, www.ASNNotary.org, that can lead you to your state’s notary laws. Click on “Notary Information by State” and then click on your state on the map. Toward the bottom of your state’s information sheet is a link to your state’s Notary Public Administrator’s web site. There you can find a link to your state’s notary laws or an online handbook that will have a chapter containing notary laws.

Correctly Applying Your State’s Notary Laws
Familiarity with your state’s notary laws will help you handle the three most common types of unusual-document situations with confidence. They are: 1) incorrectly prepared documents, 2) documents from another state, and 3) documents and/or certificates written in a foreign language.

Incorrectly Prepared Documents
It’s not unusual for a notary to be presented with a document that he or she can clearly see is improperly prepared, or inappropriate to accomplish what seems to be the document signer’s needs. In these circumstances, you must remember that a notary is strictly a ministerial officer; one who performs only the specific duties that are allowed by state notary laws. Those duties call for the notary to be an impartial witness to transactions and not perform as an attorney, who can give advice or counsel.
 
Imagine, for example, that a person seeking your notarial services has presented a document that was obtained on the Internet in template form, then filled-out in a way that is clearly incorrect. Or, maybe the document signer is asking you to carry out some action that is indicated by the document or requested by the creator or recipient of the document, but that is not addressed or authorized in your state’s notary laws.

First and foremost, never offer your opinion about the document or give directions that could be misconstrued as legal advice. The notary’s concern with the document’s contents is limited to noting the name or names of the document signer(s), noting the date of the document to be sure that it does not disqualify the document as eligible for the notarial act, determining the notarial act or acts required by examining the attached notarial certificate, and ascertaining whether the document is complete (no missing pages or blank spaces that look like they should be filled-in prior to the notarial act). This means that, no matter how much you think you can help the document signer, you cannot venture beyond your prescribed duties by offering your opinion or advice about the document or its contents.

It is also essential to know what specific duties your state’s statutes allow you to perform for the public. We find many notaries are so confused by the way the document is prepared that, in effect, they create a new duty on their own to accommodate the document. This is unacceptable. A document presented for notarization must be prepared in such a way that one of your authorized duties clearly applies to it. Otherwise, you must tell the document’s custodian that you cannot proceed with a notarial act, and explain why.

Often, the document appears complete but it displays an incorrectly written notarial certificate. If you can make clear and legible corrections on the notarial certificate to make it useable, draw a single line through the incorrect notarial wording and neatly print the correct wording nearby. Initial any changes that you make.

If the pre-printed notarial certificate is not useable, but you can clearly determine the desired notarial act (oath/affirmation or acknowledgment), you may simply write the correct certificate language by hand, rubber-stamp the correct certificate language if there is room on the document, or attach a loose notarial certificate with the proper wording.

Loose Certificates
Notarial wording may be typed or written directly on the face of the document, below the signer's signature. If there is no room, you may either place the language on the back of the document (be sure that it won't show through and obscure language on the front of the document), or use a preprinted loose certificate containing the proper wording. Use of these loose certificates requires special handling, as follows.

You must make a permanent connection between the loose certificate and the document. You can do this by simply making a note on the document to "see attached notarial certificate," and then describe on the loose certificate the document to which it is attached, specifying the document date, the type of document, and the number of pages in the document. Then, staple the certificate securely to the document.

When using a loose notarial certificate, be sure that you make an appropriate entry in the "Comments or Notes" section in your recordbook. For example, "No notarial certificate on document and no room on document to write in wording. Attached loose certificate for a jurat (or acknowledgment) at signer's direction."

If there is no notarial certificate at all on the document, you must ask the document signer to choose the desired notarial act. (Notaries in Maryland, Mississippi and New Mexico must refuse to notarize if there is no notarial certificate on the document.) Should the notary choose the notarial act, he/she could be punished for the unlicensed practice of law. The notary can manage this situation by explaining the various notarial acts, showing the signer notarial certificate language and asking the document signer to choose a notarial act. If the document signer is unable to choose, he/she can consult the document originator, the document recipient or an attorney. If no choice is made, the notary cannot proceed.

Documents From Other States
The problem here will usually lie with the notarial certificate. Most often, the notarial certificate language will comply with the statutorily prescribed language of the document’s state of origin. Fortunately, many states recommend or require the same (or substantially the same) notarial language, meaning you may use the other state’s certificate language because it is functionally indistinguishable from the certificate language your state’s notary laws recommend or require.

The more difficult judgment call occurs when the certificate language on an out-of-state document is clearly different from notary certificate language required by your state’s notary laws. Some states allow the notary to use the out-of-state notarial certificate verbatim, even when the two states’ required certificate language differs, if the document will be recorded in the state where the document originated. For an out-of-state document that will not be recorded at all or will be recorded in your commissioning state, the notarial certificate on the document must comply with your state’s notary laws. You can correct this situation by drawing a diagonal line through the original notarial certificate and indicating that you are attaching a loose notarial certificate to the document. Fill out the new notarial certificate and securely attach it to the document.

Often the notarial certificate on an out-of-state document will be partially—and erroneously—filled-in. The venue, for example, will display the name of the other state and perhaps even a county of origin. This is clearly wrong. No matter where the document originated, the venue on your completed notarial certificate must reflect the location of the notarization: that is, your state and the county in which you performed the notarial act. To correct such an error, simply draw a single line through the incorrect state and county, and write-in your commissioning state and the county where the notarial act occurred. Always initial any change that you make on the notarial certificate. If you correct the venue by changing both the state and county, initial each change separately.

Documents Written in a Foreign Language
Some states have specific statutes authorizing a notary to perform a notarial act involving a document written in a foreign language. Most states’ notary laws do not address this situation, however. It is conceivable to proceed with notarization so long as the notary can determine the signer’s name, the notarial act required, the date of the document and whether the document is complete (no missing pages or blank spaces that look like they should be filled-in prior to the notarial act) by scanning the document.

That said, we emphasize that upon examining the foreign-language document, you must be 100% certain that you are correctly determining the signer’s name, the notarial act required, the date of the document and document completeness. If you are fluent in that particular foreign language, this situation poses far less risk to you than it does to the notary who cannot read or speak the language. In most cases, those notaries who cannot read or speak the language in which a foreign document is written should simply decline to perform the notarization.

Notarial Certificates in a Foreign Language
Notaries who have confidently established a foreign-language document’s completeness, signer name, document date, and required notarial act will usually have to deal with a foreign-language notarial certificate. On this matter, the notary’s responsibility is clear. The foreign-language certificate must be replaced with one written in English. English notarial certificates are explicitly mandated in some states’ notary laws. Only a few states (Oregon is one) permit a notary to utilize a notarial certificate written in a foreign language. Those states require the foreign language certificate to contain essentially the same elements as its English counterpart. Additionally, many states require that notaries be able to read, speak and write English with the expectation that notarial acts and notarial certificates will be executed in English. Examples of notarial certificates in state notary law are always in English.

When replacing a foreign-language notarial certificate with the correct English-language certificate, draw a diagonal line through the foreign-language notarial certificate and either write-out the English-language certificate, stamp the correct language on the document if there is room, or attach a loose certificate. Your signer must understand that you are required to make this alteration.

Conclusion
Remember that many document signers will come to you assuming that you can do whatever they want you to do or whatever someone has told them needs to be done to the document. Often document signers don’t believe the notary when told that the action they seek is not an authorized notarial act. It may help to have a copy of your state’s notary laws available to show the person what you can and cannot do under the law.

If looking at your state’s notarial laws has raised questions, call ASN using your members-only toll-free hotline number. Don’t guess at what to do, and certainly don’t allow yourself to be talked into doing something you are not authorized to do by your state’s notary laws.
 
Questions, comments on this Hot Tip?  Email Kathleen@asnnotary.org


The Signer-Generated Document
ASN Hot Tip, October 2008-#1

The Situation: The client has a document that she has written by hand (or typed or created on a word processor) and wants her signature “notarized.” There is no notarial language on the document, but the signer is sure she wants the notary to perform a notarial act.

The Notary’s Dilemma: Can a notary perform a notarial act over a document created by the signer?

The Solution: A notary may take the acknowledgment of or give an oath or affirmation to a client who will be signing a document of her own creation. The document will have to meet all the requirements for the performance of a notarial act, however.

Examine the client-generated document as you would any document brought to you for the performance of a notarial act. First, make sure you have all the pages of the document. Never accept just the signature page for the notarization. If you are unsure, ask the client if she has presented the whole document to you. 

Second, make sure the document text is complete. You are not required to read the document, nor should you; however, you should scan the document and be satisfied that it is complete and ready for notarization, and that you can record the essential information about the document in your notarial recordbook.

Even though the client created the document, if there are any blanks in the text, call them to her attention, and ask her if these blanks were meant to be filled-in prior to the notarial act. If so, she must address the blanks in some way, either by adding the appropriate information or indicating "none" or "NA." Have the signer initial any changes that she makes on the document.

Ensure that if the document is dated, its date is today or earlier, NEVER later. If the client has not dated the document (and assuming there is no blank for the document date since the client created the document), advise her that you will be noting in your notarial recordbook entry that the notarization was performed for an undated document.

You may also explain to the client that should she decide to date the document, you may notarize a document dated today or earlier, but you cannot notarize if the document is dated after today. The signer must use this information to decide whether and/or when to date the document…you cannot direct the signer or give your opinion in this matter.

We have already said that the document in this example has no notarial certificate on it, a common occurrence with signer-generated documents. As the notary, you are prohibited from choosing the notarial act. Instead, you must ask the signer for direction: "Would you prefer to take an oath (or affirmation), swearing that the contents of the document are true, or would you rather make an acknowledgment, stating that you understand the document's contents and effect and are signing it voluntarily?" The choice is the signer's to make, and you may not give advice, unless you are an attorney licensed to practice law in your state.

The signer may not know or understand about the requirements for a notarization and may say, "I just want you to notarize my signature." Signers often do not realize that notaries are required to do more than just sign their name and affix their seal. You can provide the signer with a sample of notarial language for a jurat certificate and an acknowledgment certificate and explain the differences between the related notarial acts, but the choice belongs to the signer.

If the client has added a notarial certificate to the document, herself, check to see that it complies with state law. Make any necessary amendments to the notarial language by striking through incorrect text and writing-in the correct language, or attach a loose notarial certificate. (Amending the notarial certificate is within your notarial authority; it is not a case of changing the document content.) You may then proceed with performing the appropriate notarial act as indicated by the notarial certificate language: “sworn/affirmed” means you will be giving the client an oath or affirmation and “acknowledged” means that you will be taking the client’s acknowledgment.

YOUR MOST COMMON VERBAL CEREMONIES

Acknowledgment:
"Do you acknowledge or declare that you understand this document and have signed it voluntarily for the purposes stated in it?"

Oath:
"Do you swear under penalties of perjury that the information contained in this document is the truth, so help you God?"

Affirmation:
"Do you affirm under penalties of perjury that the information contained in this document is the truth?"

Questions, comments on this Hot Tip?  Email Kathleen@asnnotary.org




The Notary's Responsibility for Document Contents
American Notary, Issue 2008-#1

We've found that a notary's level of concern over the actual contents of a document can range from noticing a couple of spaces in the document that look like they should be filled in, up to questioning the document's contents as being a "bad" deal for the signer. We have had to rein-in some members who, in their concern, were giving their clients what amounted to legal advice about the contents of the document.

We also know that some clients will go to a notary thinking that a notarial act will in some way validate the contents of the document that they have brought with them, especially if they have hand-written the document themselves.

When the notary is handed a document for the purpose of performing an acknowledgment or oath/affirmation notarial act over it, his interest in the contents of the document is limited. His primary concern is to determine if the document is eligible for a notarial act. There are a few criteria that must be met, and if they are not, the notarial act cannot be performed.

The criteria that the document must satisfy are physical in nature. For example, it must display a proper date; it must be "complete;" it must display notarial language that guides the notary to perform the correct notarial act. None of these considerations touch on the contents or effect of the document. Document contents and effect are outside the scope of the notary's involvement in the transaction, which is limited strictly to document execution - the brief ceremony in which the signer's oath or acknowledgment will result in a document being put into effect.

It is the sole responsibility of the signer to understand the contents of and the effect of signing the document when the notarial act is an acknowledgment. The notary's responsibility is limited to determining that the signer appears to do so, and that the document is eligible for the notarial act as described above.

If the notarial act is an oath or affirmation, the signer is accountable for the contents of the document then, too. Before the notary, the signer swears or affirms that the contents of the document are true. If that turns out not to be the case, then the signer/oath taker is the one who has perpetrated a fraud—not the notary. This does not mean that the notary should proceed with a notarial act against his suspicions that the transaction might be fraudulent. This assessment, however, is subjective on the notary's part—there are no black-and-white guidelines since the notary is not authorized to analyze and pass judgment on the document's contents. You can, however, watch for certain warning signs:

  • There is another person present who has nothing to do with the transaction and seems to have power over the document signer.
  • The document signer appears to be unusually nervous.
  • The document signer and/or other person wants the notary to rush the performance of his notarial act(s).
  • The person who is present before the notary does not closely resemble the picture on his ID card and/or the physical description on the ID card does not match the signer.
  • The signer has no other form of identification to back up a suspicious ID card.

The notary must not comment on the contents of the document, nor should he attempt to explain any parts of the document to the signer. The purpose of the notary is to be a disinterested third party who has no connection to the document at hand. If the notary has reason to believe that the document or the transaction is in some way fraudulent, all the notary can do is decline to perform the notarial act.
 
Questions, comments on this Hot Tip?  Email Kathleen@asnnotary.org

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