Presence Requirement

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Presence Requirement: Cornerstone of the Notarial Act in Any Medium
ASN Hot Tip, February 2010-#1

The “personal presence requirement” in notarial acts refers to the mandate that the document signer in need of a notarial act must appear in person before the notary public. Only then may the notarial act be properly performed. The personal presence requirement is considered the cornerstone of notarial practice, enabling the notary to properly assess the document signer’s identity, as well as whether he/she comprehends the effect of the transaction and is entering into it freely and willingly. 

The ability to make these various assessments in the presence of the signer is mission-critical to the notary’s objective of deterring fraud. Yet, we are frequently asked whether technology might allow the presence requirement to be eliminated from electronic notarizations. American Society of Notaries believes strongly that, be it a paper or electronic notarial act, the presence requirement is an indispensable element. Here’s why.

In every notarial act, notaries carefully assess certain information and carry out actions that are rooted in direct and personal contact with the signer. These assessments and actions establish the integrity of a notary’s witnessing act, and are equally essential in paper or electronic transactions.

  • First, the notary satisfies himself that the person appearing before him is the named signer of the document. The notary may rely on personal knowledge of the signer’s identity, or presentation of a satisfactory identification document, or the oath of a credible witness (where allowed). One of these methods of evidencing identity, together with the physical presence of the person claiming identity, forms the basis of positive identification of the signer by the notary.

  • The notary also must observe whether the signer is aware of the transaction and is fully engaged. If the signer does not seem to be fully competent or aware, the notary will decline to proceed. This assessment serves to protect signers who may be sick, or very elderly, or impaired in some way.

  • The notary must be able to observe that the signer is executing the document of his own free will, and that there is no coercion or physical threat to the signer. Direct threats such as a gun to the signer’s head, for example, could be concealed if the notary is relying on just an audio/video connection to communicate with the signer. On the other hand, such threats or coercion are detectable by a notary who is in the same room as the signer.

  • Finally, having made the prior assessments (and assuming that the document itself presents no barriers to notarization), the notary proceeds to the heart of the notarial act by taking the signer’s acknowledgment or administering an oath or affirmation, then completing a notarial statement attesting to the facts of the notarization. These notarial statements (the notarial “certificate”) are commonly set forth in state notary and real property statutes, and are used interchangeably for both paper and electronic notarial acts. They contain the language “Acknowledged before me” and “Subscribed and sworn to before me”—plain evidence that personal presence of the signer is a required element of notarization, be it a paper or electronic transaction.

The formalities and requirements of notarial acts are unaffected by the medium in which the transaction occurs. This principle has been upheld in the National E-Notarization Standards1 of the National Association of Secretaries of State, by the Uniform Law Commissioners developing the Revised Uniform Law on Notarial Acts2, and by states enacting e-notarization statutes and rules.

Personal presence of the signer before the notary is a time-tested requirement that cannot be set aside for the sake of technology or convenience.  American Society of Notaries will fight to preserve the assurances provided by notarial acts, by opposing any efforts to eliminate the personal presence requirement from the performance of a paper or electronic notarial act.

Questions, comments?  Please email
1National Association of Secretaries of State, National E-Notarization Standards, adopted July 12, 2006.
2National Conference of Commissioners on Uniform State Laws, Revised Uniform Law on Notarial Acts, draft as of February 23, 2010.

Technology VS the Presence Requirement
ASN Hot Tip, January 2009-#2

The Situation:  A notary was asked by her employer, an attorney, to swear-in a person (the "deponent”) who would be on the phone, giving a telephone deposition. The notary was asked to administer a verbal oath/affirmation to the deponent, compelling him to tell the truth when asked questions by the attorney. The notary and the attorney would be in the same room together, but the deponent would be in another city and would be available to the notary and the attorney by phone.

The Notary’s Dilemma:  The employee notary was unsure if she could give someone an oath or affirmation over the telephone as her employer requested.

The Solution:  The notary in this case would have to decline her employer’s request. A notary may not take an acknowledgment or give an oath or affirmation when the only means of communicating with the signer is through electronic media. It does not matter if the transaction involves a document or verbal testimony. The notary must be physically present in the same room with the deponent or document signer during the performance of the notarial act.

The presence requirement is the cornerstone of notary law.
No matter what reason or rationalization notaries may give, there is NO excuse for performing a notarization when the client is not physically present with the notary. Remember that you must positively identify the client, communicate with him or her and be able to hear and observe the person's responses and behavior. You simply cannot do that if the person is not standing before you.

Some parts of our lives have been made more convenient because of advancing technology. This never means that the fundamentals of a lawful notarial act can be abandoned for convenience’s sake.
For Example...
A deposition can be taken over the phone, thereby saving one or more people involved in the deposition the inconvenience of having to travel to a common location. If the notary and the deponent are in the same room, and the attorney is on the phone in a different city, the notary can swear-in the deponent. The presence requirement for performing such a notarial act would be honored, and the deposition could continue over the phone.

It has come to our attention that some people think that a notarization can be conducted through video conferencing. They argue that the notary can see and hear the client and observe his behavior over the Internet by means of a webcam. It's so convenient, they say, when transactions including the required notarizations can be executed with no one having to leave his or her home or office. Just switch on the webcams and there you are!

In much the same way, some people would argue that having the document signer employ a secure digital signature to sign an electronic document would allow the participants in a completely electronic transaction to step around the legal requirement that the notary and signer must be in the same room. The fact that documents may be signed digitally by the client and/or notary or that everyone can see everyone else through webcams does not affect the requirements of notary law nor any of a notary’s responsibilities. To carry out essential functions such as positively identifying the signer, and assessing signer comprehension and willingness to proceed, the notary must always require the personal appearance of the signer.
Moral of the Story
The conveniences of modern technology do not allow notaries to engage in convenient omissions. Every step of a proper notarial act must be performed, each time, for your notarization to be legally correct. So in our examples, the deponent must physically appear before the notary for the swearing-in ceremony. Likewise, the document signer must be present before the notary during the entirety of the performance of the notarial act regardless of whether the transaction is being executed on paper or through the medium of electronic documents.

Questions, comments on this Hot Tip?  Email

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