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Friday, August 26, 2011

DON'T Select or Recommend Notarial Language

Notarial Certificate Issues

DON'T Select or Recommend Notarial LanguageASN Hot Tip, Published 8-26-2011
A notary must not recommend notarial language when it is missing from a document presented for notarization.  It may be perfectly clear to you which notarial language is the best fit for the document, yet still—the decision is not yours to make.
(Exceptions:  the notary is an attorney, or a trained professional in a field specific to the document’s subject matter.  Exercise extreme care and cautious judgment if you act under these exceptions.)
In each of the following examples (just three of many possibilities), a document presented for notarization does not display notarial wording, but the document custodian/signer wants to execute it with a notarial act. 
Example 1:  The document is a statement written by the named signer, detailing the facts of a particular event that she witnessed.  The statement relates to a dispute that may end up in court.
You believe the appropriate notarial act is an oath/affirmation, and the proper certificate is a jurat (the signer would swear or affirm that the facts provided are true).
Example 2:  The document is an agreement drawn between two parties, specifying the terms of sale for some rather valuable personal property. 
You believe the appropriate notarial act and certificate is an acknowledgment (the signers would declare that they are signing the document willingly, for its stated purposes).
Example 3:  The document is a property leasing contract, drawn for the lessee, Jane Doe.  The document is presented by John Smith, who states he will sign for Jane Doe under a power of attorney. 
You believe the appropriate notarial act is an acknowledgment, and the proper certificate is an acknowledgment in a representative capacity (John Smith would sign and acknowledge, as attorney-in-fact for Jane Doe, the principal, that Jane Doe is executing the agreement willingly, for its stated purposes.)
If, in situations similar to these you have acted solely on your belief (i.e., you chose the notarial act and certificate)—change your ways.  The only proper way to proceed is to ask the signer or relying parties which notarial act they wish you to perform:
Since there is no notarial wording on this document, I will describe some notarial acts to you, I will show you samples of notarial wording, and I will ask you to choose. 
Do you wish to declare that you are signing the document of your own free will, for its stated purposes?  That is an acknowledgment notarial act… here is an example of the notarial wording.
Or, do you wish to swear or affirm that the contents of this document are true?  That is an oath/affirmation notarial act… here is an example of the notarial wording.
If you cannot decide, perhaps the document creator or receiving party can help you.
ASN has created an informational flyer that can help you describe the acknowledgment and oath/affirmation notarial acts to signers and relying parties.  Click here to view the document.
Once a notarial act is chosen by the signer or another related party, then you may proceed.  Perform the verbal ceremony for the chosen notarial act, and add the appropriate notarial certificate for that act.  (Once the act is chosen, then you are expected to select the appropriate notarial language.)
Make careful notes in your recordbook or journal, such as:  “Document presented with no notarial language.  Signer chose acknowledgment.”
If no one associated with the transaction can or will choose a notarial act, then you should decline to proceed.  Explain that your notarial authority does not include choosing the notarial act.  If there were no other barriers to notarization, offer to officiate if the signer can return with clear guidance about the desired notarial act.
 Questions, comments on this Hot Tip?  Email
No Room for the Notary's Seal on the Notarial Certificate  ASN Hot Tip, July 2009-#1
The Situation:  You are examining a document that has been brought to you to assess its eligibility for the performance of a notarial act. You have been given all the pages of the document, and it appears to be complete. There is a notarial certificate preprinted on the document with proper notarial language. The only problem is that whoever created the document didn’t leave room for you to affix your notary seal to the notarial certificate.
The Notary’s Dilemma:  How do you complete the notarial act by affixing your notary seal onto the notarial certificate if there is no room for an impression of your seal?
The Solution:  We have all seen or will see the page-and-a-half document that is squeezed onto one page to save on printing costs. All too often, the one thing that is omitted in the name of saving space is the area provided for the notary to affix his or her notary seal.
So, where does the notary impress his or her stamp? One member recently asked us if should could affix her stamp at the top of the document, since there was room in the top margin. Another asked if she should affix the impression of her stamp on the back of the document.
If your state does not require a notarial seal, technically, you may handwrite the information onto the notarial certificate that would normally be affixed with your ink-stamp. You may be able to get the information into an oddly-shaped space that your stamp impression will not fit into. While technically permissible, with this option you run the risk of the document recipient objecting to the lack of an official-looking notarial stamp on the document. Of course, this is absolutely not an option for notaries in states that require use of an official notarial seal.
So, how do you address the problem of affixing your stamp impression when there’s no room on the notarial certificate? The stamp impression should be near your signature, and it should be on the notarial certificate.
A very good and reliable option is to attach a loose certificate that contains the same notarial language as the unusable preprinted notarial certificate. Draw a diagonal line through the old certificate, initial the change, and indicate that there is another notarial certificate now attached to the document (“Please see attached notarial certificate.”). You will have plenty of room for your stamp on the attached certificate. Since you are attaching the same type of notarial certificate that was printed on the document, you are not choosing the notarial act for the client, and you are not practicing law without a license.
Anytime you use a loose notarial certificate, you will physically attach it to the document with a staple, and you will also create a non-physical attachment to the document by adding a description of the document to the loose certificate
(“This certificate is attached to a _____ page document, dated ___________, and regarding/titled _________________.”).
Finally, you should carefully record, in your recordbook (or journal) of notarial acts, the fact that you attached a loose notarial certificate to the document, and why (“No room for stamp impression on original certificate; attached loose notarial certificate.”).
Missing or Incorrrect Notarial Certificate ASN Hot Tip, May 2008-#2
The Situation:  A client brings a document to a notary and tells the notary that he is required by the document’s recipient to “get the document notarized.” There is no notarial language printed on the document.
The Notary's Dilemma:  Without a notarial certificate printed on the document, the notary cannot see for himself which notarial act the document creator or recipient requires. The notary knows that he cannot choose the notarial act for the client because that would involve him in the unlicensed practice of law. The client must tell the notary which notarial act (taking an acknowledgment or giving an oath/affirmation) he wants performed over the document.
The Solution:  The notary may explain the differences between taking the client’s acknowledgment and giving the client an oath or affirmation, and ask the client to choose:
Oath/Affirmation–The person taking an oath swears to a Supreme Being (“God”) that the information in the document is the truth. A person who is making an affirmation makes a personal vow that the information in the document is the truth; he/she simply prefers not to refer to a Supreme Being. The oath and affirmation have the same legal effect and are made under the penalties of perjury. 
Acknowledgment–The person who makes an acknowledgment is stating that the signature on the document is indeed his (or her) own, and that he signed the document willingly (under his own free will). By making the acknowledgment, the person is also saying that he understands the contents of the document and the consequences of signing it, and intends to abide by the provisions of the document.
The notary may also show the client examples of an acknowledgment notarial certificate and a jurat. If the client still cannot choose, he may call the document recipient or document preparer, or an attorney, to ask which notarial act is required. 
If the client is still unable to decide on a notarial act, the transaction between notary and client comes to an end without a notarial act being performed. The notary records the reason for declining to perform a notarial act in his recordbook.
If the client chooses a notarial act to be performed over the document, the notary may write, type or stamp the appropriate notarial wording on the document. (This is not unauthorized tampering with the document… the notary always has authority to add or amend the notarial certificate to reflect the actual notarial act performed.) Using the back of the document is permissible as long as the notarial wording does not bleed through the paper to be visible on the written side of the document.
The notary may prefer to attach a pre-printed, loose notarial certificate to the document. On the loose certificate, the notary must identify the document in such a way that the loose notarial certificate could not be removed and used on another document. A loose notarial certificate may have this identifying language preprinted on it:
This certificate is attached to a (# of pages) page document dealing with/entitled ____________________ and dated ________________.
The Notary’s Signature and Seal
ASN Hot Tip, January 2008-#1
What is the significance of the notary signing the notarial certificate and placing her official seal near her signature?The notarial certificate is a record of the elements of the immediately preceding notarial act. It is called a notarial certificate because the notary certifies that everything stated in the wording of the certificate actually took place. A completed notarial certificate conveys to others that a trained and impartial officer of the state--the notary—personally ensured that the actions necessary to execute the document were performed properly, with the true document signer present as a willing and knowing party to the transaction. The involvement of a notary creates an invaluable level of trust in the integrity of a document execution. It is vital that the notarial certificate be filled out completely and truthfully.
The Notarial CertificateThe first thing that the notary certifies is that the notarial act was performed within her jurisdiction. This will be the state in which the notary is commissioned and the county in which the notarial act was performed. This is the “venue” and is shown on the notarial certificate as “State of _____ , County of _____ .”
In the body of the notarial certificate, the notary certifies that the client was in the physical presence of the notary during the performance of the notarial act. This presence is indicated by words such as “personally appeared” or “before me.”
The notary certifies as a state officer that she gave an oath/affirmation to the signer or took the signer’s acknowledgment in a verbal ceremony. This means that the notary asked the document signer aloud if the information in the document is true (oath/affirmation), or she asked the document signer aloud if the signature on the document is his, if he understands the contents of the document and if he is signing the document without being coerced (acknowledgment). The notary also heard the signer’s verbal and affirmative reply to the notary’s verbal ceremony.
Also in the certificate, the notary certifies the date on which the notarial act occurred. No date except the date of the notarial act may be put in that space on the notarial certificate.
The notary certifies the name(s) of the signer(s) who were physically present during the performance of the notarial act. Of course, to put any signer’s (or signers’) name on the certificate other than the signer who actually appeared constitutes creating a false notarial certificate.
The notary also certifies the method by which she positively identified the signer. If identification was made from an ID card, do not write the full number of the ID card on the notarial certificate; at most, record a fragment of the full number. The notarial certificate may be seen by a number of people or even be part of a document that is publicly recorded. The notary should protect the signer from becoming a victim of identity theft.
Remember that the notarial certificate is not the notarial act, itself. It is a record of the process of performing the notarial act. If the notary signs the notarial certificate with her official signature as a notary and affixes her official seal on the certificate, she is certifying that all the steps of a proper notarial act were carried out, including positively identifying the signer, ensuring the document is physically eligible for notarization (proper date, no missing pages, etc.) and administering the appropriate verbal ceremony. If the verbal ceremony did not take place, then the notary has created a false notarial certificate. It is specifically against the law in most states for the notary to sign and seal a notarial certificate that she knows to be false.
A truthfully completed notarial certificate, signed and sealed by the notary, is the culmination of a procedure designed to bring a level of certainty and trust to document transactions. Always complete your notarial certificate meticulously and truthfully!

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