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Monday, June 06, 2011

Model Notary Act...For Notaries Only

https://cdn.nationalnotary.org/News_and_Resources/Library/2010_Model_Notary_Act.pdf



ARTICLE I MODEL NOTARY ACT 1
Article I
Implementation and Definitions
Chapter 1 – Implementation
Comment
General: This chapter states the purposes
and sets out the applicability of the Model
Notary Act (hereinafter “the Act”). Section 1-2
is particularly noteworthy because its goals
undergird most of the provisions found
throughout the Act, and help justify a number
of the positions taken. The balance of the
chapter addresses standard legislative matters.
§ 1-1 Short Title.
This [Act] may be cited as the [Model Notary Act of 2010].
§ 1-2 Purposes.
This [Act] shall be construed and applied to advance its underlying
purposes, which are:
(1) to promote, serve, and protect the public interest;
(2) to simplify, clarify, and modernize the law governing notaries;
(3) to foster ethical conduct among notaries;
(4) to enhance cross-border recognition of notarial acts;
(5) to integrate procedures for traditional and electronic notarial acts;
and
(6) to unify state notarial laws.
Comment
Section 1-2 enunciates the
overarching purposes of the Act.
Although not necessarily listed in order of
importance, the first two subparagraphs
clearly constitute the driving spirit of the
entire Act.
Subparagraph (1) places the public’s
interest above all else. The Act adopts the
position that notaries are first and
foremost public servants. Their powers
are to be exercised only in the public’s
interest and not for personal gain. Other
provisions elsewhere in the Act support
and execute this operating precept. (See,
e.g., Subparagraph 5-5(a)(1) (no
notarization of one’s own signature);
Subparagraph 5-5(a)(3) (disqualification
when signers are relatives); Section 5-11
(no testimonials); and Subsection 6-2(a)
(no surcharges on fees).)
Subparagraph (2) stakes out equally
important territory: bringing notarial laws
into the 21st century. Some state notary
laws are carry-overs from antiquated
statutes (see, e.g., MASS. GEN. LAWS ANN.
ch. 222, §§ 1 to 11), some are quite
minimalist (see, e.g., VT. STAT. ANN. tit.
24 §§ 441 to 446), and others a
patchwork product of numerous unrelated
legislative amendments (see, e.g., CAL.
GOV’T. CODE §§ 8200 to 8230 & CAL.
CIV. CODE §§ 1181 to 1197). The Act
offers a comprehensive statute that
addresses all contemporary notarial
issues, and introduces rules not only for
paper-based documents but also for
electronic transactions. It then integrates
them into one workable piece of
legislation. The Act makes the effort both
to establish appropriate commissioning
guidelines, and to detail proper procedures
for performing notarial acts. The focus is
2 MODEL NOTARY ACT ARTICLE I
clearly on ensuring that notaries understand
their roles. This works toward satisfying the
public interest objective set out in
Subparagraph (1). The drafters addressed issues
principally involving the commissioning of
notaries and the performance of notarizations.
Consequently, even if the Act is adopted, other
legislation may still be needed to respond to
related matters, such as ensuring that the
statutory forms in other sections of the
jurisdiction’s law bear notarial certificate
wording specified in Sections 9-4, 9-5, and 9-6.
Subparagraph (3) introduces a new
concept: notary ethics. Although the Act does
not establish any ethical standards, it recognizes
that a notary owes special duties both to
principals and the public, and consequently
may be regarded as a professional. Professions
impose ethical standards upon their members,
and this should be the case as well for notaries.
In 1998, the National Notary Association
promulgated THE NOTARY PUBLIC CODE OF
PROFESSIONAL RESPONSIBILITY. (Reprinted at
32 J. MARSHALL L. REV. 1123-1193 (1999) and
available online at www.NationalNotary.org,
clicking on “Best Practices.”) It is a
comprehensive ethics guide adaptable by state
legislatures as a statute or by commissioning
officials as an administrative rule. (See, e.g.,
AMER. SAMOA CODE ANN. § 31.0316, requiring
notary commission applicants to take a course
and pass a test that is based upon applicable law
and THE NOTARY PUBLIC CODE OF
PROFESSIONAL RESPONSIBILITY, which is
provided by the Secretary of American Samoa
as a study guide; and HAWAII ADMIN. RULES §
5-11-39 (12), listing as grounds for refusal to
renew, reinstate, or restore a notary commission
the notary’s conduct or practice contrary to the
CODE.) Absent taking this step, the Act
provides rules and procedures that, when
properly followed, encourage professionalism
and foster ethical conduct.
Subparagraph (4) recognizes the modern
reality of cross-border commerce. Principals
who migrate from one jurisdiction to another or
enterprises that conduct multi-state businesses
need to have documents that are recognized
wherever presented. A major objective of the
Act, as stated in Subparagraph (6), is to unify
notarial laws throughout the country. Problems
relating to the recognition of out-of-state
notarial acts can be eased or eliminated if the
Act gains widespread acceptance.
Subparagraph (5) addresses the reality that
electronic transactions are becoming more
prevalent. One goal of the Act is to ensure that
workable notarial procedures are in place to
accommodate that fact. To this end, Article III
of the Act is devoted to establishing rules for
electronic notarizations.
[§ 1-3 Interpretation.
In this [Act], unless the context otherwise requires, words in the singular
include the plural, and words in the plural include the singular.]
§ 1-[4] Prospective Effect.
The existing bond, seal, length of commission term, and liability of current
notaries commissioned before the [Act’s] effective date may not be invalidated,
modified, or terminated by this [Act], but those notaries shall comply with this
[Act] in performing notarizations and in applying for new commissions.
Comment
Section 1-4 protects valid notary
commissions existing when the Act is adopted.
The status of notaries holding such
commissions continues according to the terms
and conditions at the time of commissioning.
However, recommissioning for these notaries
will have to be done pursuant to the new rules
of the Act. (See Section 3-5.) Significantly,
although the status of a current commission is
not affected, the new operating rules of
notarization (see generally Chapters 5, 6, 7, 8,
and 9) and concomitant obligations (see
generally Chapter 12) must be followed by all
notaries immediately, including those who were
commissioned prior to the adoption of the Act.
ARTICLE I MODEL NOTARY ACT 3
§ 1-[5] Severability Clause.
If any provision of this [Act] or its application to any person or
circumstance is held invalid, the invalidity does not affect other provisions
or applications of this [Act] that can be given effect without the invalid
provision or application, and to this end the provisions of this [Act] are
severable.
[§ 1-[6] Repeals.
The following acts and parts of acts are hereby repealed:
[__________________________________________________________].]
Comment
Section 1-6 recognizes that not all
jurisdictions have a single act containing all
of the rules regulating notaries and
notarizations. Thus, legislators will have to
identify existing statutes or portions thereof
that are superseded by the Act and make the
appropriate repeals. It is possible that some
extant rules affecting notaries are not
inconsistent with the Act, and ought not be
repealed. This might include rules
prohibiting notary fees for notarial acts
related to elections or the securing of
veterans’ benefits. (See, e.g., CAL. ELEC.
CODE § 8080, which prohibits a notary from
charging a fee for verifying any nomination
document or circulator’s affidavit.)
§ 1-[7] Effective Date.
This [Act] shall take effect [_______________].
4 MODEL NOTARY ACT ARTICLE I
Chapter 2 – Definitions Used in This [Act]
Comment
General: A number of recurring terms
are used throughout the Act. Some have a
technical meaning specific to notarial use,
while others merely require elaborate
explanation. Following the example of other
statutes, these terms are defined in a
separate section to simplify the text in the
balance of the Act.
§ 2-1 Acknowledgment.
“Acknowledgment” means a notarial act in which an individual at a single
time and place:
(1) appears in person before the notary and presents a document;
(2) is personally known to the notary or identified by the notary
through satisfactory evidence; and
(3) indicates to the notary that the signature on the document was
voluntarily affixed by the individual for the purposes stated within
the document and, if applicable, that the individual had due
authority to sign in a particular representative capacity.
Comment
In defining “acknowledgment,” Section 2-
1 makes clear that all three elements of the
notarial act must occur at the same time and
place. Subparagraph (3) explicitly requires that
the principal voluntarily sign the document “for
the purposes stated” therein. Although current
statutes seldom directly address volition (but
see GA. CODE ANN. § 45-17-8(b)(2) and (3)), it
seems to be generally accepted by the courts as
a requirement for an acknowledgment. The Act
eliminates any doubt about the need for volition
in a proper acknowledgment.
A second aspect of Subparagraph (3)
raises other issues. The Act converts an
acknowledgment from simply a formal
statement that the signature on the document
was freely made by the principal into one that
also declares the intent to validate the document
itself. Statutory acknowledgment forms often
bear language stating that the acknowledger
affixed a signature “for the purposes stated
within the document.” (See, e.g., ARK. CODE §
16-47-107, which states that the instrument was
signed “for the consideration, uses and
purposes therein mentioned and set forth.”)
Some drafters criticized this addition, fearing it
could unwittingly impose unintended
obligations upon the principal. The concern
follows from the fact that a principal may read a
document, not truly understand its effect, but
nonetheless sign it. It was suggested than an
acknowledgment ought not require the
principal to speak to the purpose or intent of the
document. In response, it was argued that
apprehensions over this point can be put to rest
by the intended reasonable interpretation of the
provision. The definition does not make the
acknowledgment in itself an admission that the
principal understood the legal significance of
the document. Indeed, it does not speak to the
contents at all. The provision only means that
signing serves to adopt the document as the
principal’s act. The legal ramifications of the
document are subject to independent review.
(See also Subparagraph 5-2(3), adopting the
rule that a notary must not notarize a document
if the principal does not appear to understand
the significance of the transaction.)
In acknowledging a document, the
principal does not make any statement
regarding the truthfulness or accuracy of the
contents of the document. (Compare Section 2-
7 and Comment defining “jurat.”) Moreover,
there is no implication that the principal has
even read the document. The acknowledgment
speaks to the fact that the document was signed
voluntarily for the purpose of validating the
document.
ARTICLE I MODEL NOTARY ACT 5
Additionally, the principal asserts that
he or she was authorized to sign the
document if it was signed in a representative
capacity. (See Section 9-4 for a model
acknowledgment certificate form.)
§ 2-2 Affirmation.
“Affirmation” means a notarial act, or part thereof, which is legally
equivalent to an oath and in which an individual at a single time and place:
(1) appears in person before the notary;
(2) is personally known to the notary or identified by the notary
through satisfactory evidence; and
(3) makes a vow of truthfulness or fidelity on penalty of perjury, based
on personal honor and without invoking a deity or using any form
of the word “swear.”
Comment
Section 2-2 offers a definition of
“affirmation” that contains all of the
standard components of an oath. An
affirmation serves as the functional
equivalent of an “oath” (see Section 2-11)
for principals who prefer not to pledge to a
supreme being. As required for most
notarial acts, by definition, the principal
must personally appear before and
satisfactorily prove identity to the notary. In
order to solemnify an affirmation, the Act
compels the principal to understand that the
statement is made under penalty of perjury.
The Act does not prescribe affirmation
wording. It assumes that a simple statement
including the language “I affirm” and “under
penalty of perjury” will suffice. The notary
may orally state the affirmation and have the
principal positively assent to it, or the principal
may speak the entire affirmation aloud. It is
preferable for assent to be made by oral
response, but any action (e.g., a hand gesture or
nod) could constitute assent if clearly made for
the purpose of adopting the affirmation,
especially in the case of a principal who is
physically incapable of communicating
orally. While it is not necessary that the
principal raise his or her right hand to make
an affirmation, notaries are encouraged to
require any ceremonial gesture that they feel
will most compellingly appeal to the
conscience of the principal. When
associated with a notarial certificate, good
practice would suggest that the notary read
aloud any provided affirmation wording and
obtain the principal’s assent. The key point
is that a proper affirmation requires a
positive and unequivocal response by the
principal.
An affirmation may be a notarial act in
its own right, but most often it is
administered as part of a jurat and the
person making the affirmation will be
required to sign an affidavit or other
document. Note, nonetheless, even in those
situations when a signed document is not
associated with the affirmation, the notarial
act should be memorialized in the notary’s
journal, with the entry including the
principal’s signature.
§ 2-3 Commission.
“Commission” means both to empower to perform notarial acts and the
written evidence of authority to perform those acts.
§ 2-4 Copy Certification.
“Copy certification” means a notarial act in which a notary:
(1) locates or is presented with a paper or an electronic document that
is neither a vital record, a public record, nor a recorded document;
6 MODEL NOTARY ACT ARTICLE I
(2) compares the document with a second paper or electronic document
that either is:
(i) presented to the notary;
(ii) located by the notary; or
(iii) copied from the first document by the notary; and
(3) confirms through a visual or electronic comparison that the second
document is an identical, exact, and complete copy of the image or
text and, if applicable, metadata of the first document.
Comment
Section 2-4 defines and provides
guidance on the notarial act of certifying
copies. Subparagraph (1) prohibits a notary
from making certified copies of certain
documents. Generally, the Act assumes that
only the duly appointed public custodians of
official records and documents may certify
copies of them. Thus, a notary may not
certify a copy of a marriage license, birth
certificate, or a recorded document such as a
deed.
In Subparagraph (1), in a departure
from the former Act, the drafters allow a
copy of an electronic document to be
certified, applying the same proscriptions
against certifying a copy of a vital or
recorded document. In another departure,
the drafters recognize that a notary may be
asked to locate the original paper or
electronic document – possibly for a
verification of fact (see Section 2-22) if vital
or recorded documents are not involved – in
contrast to the typical circumstance wherein
the original document is presented to the
notary. This expands the utility of copy
certification.
Subparagraph (2) provides for three
different scenarios, and the pertinent entry
in the notary’s journal of notarial acts
should be clear on which applies for any
particular copy certification. In the first, the
notary would be presented with a second
paper or electronic document to compare
with the original described in Subparagraph
(1). In the second scenario, the notary would
personally locate this second document,
perhaps in an office housing physical
records or on the Internet. In the third
scenario, the notary would personally make
or supervise the making of a copy of the
original document referenced in
Subparagraph 1, whether that original were
presented to or located by the notary. This
copy would then be compared to the
original. While the preferred situation from
a fraud-deterrent perspective would always
be for the notary to control production of the
second document, this would limit the utility
of copy certification. For instance, the
notary might not have access to
photocopying or electronic scanning
equipment to duplicate an original paper
document. Alternatively, the notary might
be asked to certify the congruence of two
electronic documents, one or both of which
may already exist on the Internet. As long as
the notary, through a careful visual or a
reliable electronic comparison (see
Subparagraph (3)), confirms that the two
documents are identical, the certification
will be meaningful.
Subparagraph (3) recognizes that
electronic documents contain “hidden”
coded information other than text or images.
These “metadata,” for instance, dictate the
style, size, and spacing of the typeface in
which the text appears. They might also
include past editings that have been made to
the electronic document. It may be very
useful for a notary’s client to know whether
a certified copy of an electronic document
does or does not include the same metadata
prescriptions of its original. The copy
certification certificate in Section 9-8 allows
the notary to provide such information.
ARTICLE I MODEL NOTARY ACT 7
§ 2-5 Credible Witness.
“Credible witness” means an honest, reliable, and impartial person who
personally knows an individual appearing before a notary and takes an oath
or affirmation from the notary to vouch for that individual’s identity.
Comment
Section 2-5 defines the term “credible
witness.” Consistent with the public interest
goal of deterring fraud and creating reliable
documents, the Act takes the step of
removing any doubt as to who can qualify to
act in this capacity. Particularly noteworthy
is the impartiality requirement. This means
that the witness neither has an interest in nor
is affected by the transaction for which he or
she is proving the identity of the principal in
a notarization. Although not specifically
required by the Act, witness impartiality
may be measured by the same standards
used to disqualify notaries from acting. (See
Section 5-5 and Comment.)
The definition does not address
whether a credible witness must be
personally known to the notary or whether
instead the witness may be identified
through reliable identification documents.
This matter, however, is resolved by the
definition of “satisfactory evidence of
identity” (see Section 2-20), which dictates
that only in instances where two credible
witnesses are vouching for the identity of a
principal may the notary use identification
documents to confirm the identity of a
credible witness.
§ 2-6 Journal of Notarial Acts.
“Journal of notarial acts” and “journal” mean a book to create and preserve
a chronological record of notarizations that is maintained by the notary
public who performed the same notarizations.
Comment
This definition of “journal of notarial
acts” differs from the definition in the
former Act by its use of the word “book”
rather than “device.” The drafters’ intention
was to limit the application of the definition
to a journal with paper or other tangible
pages, and to let the definition of “electronic
journal of notarial acts” in Section 15-4
address electronic devices for recording
notarial acts. A notary or an electronic
notary may elect to use either kind of
journal. (See Sections 7-1 and 20-1.)
Another departure from the previous
definition is the addition of the phrase “who
performed the same notarizations.” This
clarifies that no person other than the notary
who performed the notarial acts may make
entries in the journal that records those acts.
§ 2-7 Jurat.
“Jurat” means a notarial act in which an individual at a single time and
place:
(1) appears in person before the notary and presents a document;
(2) is personally known to the notary or identified by the notary
through satisfactory evidence;
(3) signs the document in the presence of the notary; and
(4) takes an oath or affirmation from the notary vouching for the truthfulness
or accuracy of the signed document.

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