Notary Best Practices
Verify Before You Act!
ASN Hot Tip, Published February 2011
Today’s notarial tip comes to us courtesy of a member who faced a challenging situation last week: how to proceed when the signer would be signing by mark.
The Situation:
The very elderly signer could no longer grasp a pen or pencil well enough to sign with her traditional signature “scrawl.” She could, however, make a mark (such as an “X”). The signer would be executing a number of prepared documents, and our notary member was asked to officiate at the signer’s home.
The Notary’s Dilemma:
Upon scanning the documents presented for notarization, the notary discovered the document preparer’s very explicit instructions to the notary for how to carry out a signature-by-mark signing. These instructions seemed to be reasonable and the notary initially thought following them might be wise, in order to satisfy the wishes of the relying parties and avoid the risk of document rejection. He wondered if he should just “go along to get along.”
The Solution:
On further thought, the notary (just one week into his new membership with ASN!) decided he should call us to verify whether the document preparer’s instructions for the signature-by-mark signing were acceptable.
They were not. The document preparer’s instructions for a signature-by-mark signing conflicted with the notary’s state laws and rules. As we counseled our member, notaries should always check their state statutes and rules for specific guidance on how the notary must perform in certain types of transactions. Don’t blindly act on instructions without verifying them.
For example, it is not at all uncommon for notary statutes to provide explicit procedures for a signature-by-mark signing. Document preparers unfamiliar with notary law may not know this, but notaries themselves should. Our member notary learned that, contrary to the instructions provided by the document preparer, the signer would have to affix her mark in his presence (even though the notarial act was an acknowledgment), two witnesses instead of one would be required, and the witnesses could not be affected by the transaction (calling into question the document preparer’s expectation that family members could serve as witnesses). Furthermore, the notary’s statutes required him to write very specific information underneath the signer’s mark, such as the names and addresses of the witnesses. These and other details were simply not provided in the document preparer’s instructions.
Had the notary simply elected to “go along to get along,” he would have failed in his duty to perform in strict compliance with state statutes and rules. Instead, our member explained to the signer why he could not proceed, and inspired trust through his tact and professionalism.
In Conclusion:
Never simply assume that instructions given by document preparers to the notary are “okay”—they might conflict with your statutes or rules. When faced with an unusual or challenging notarization, or when given instructions on how to proceed, check your state laws and rules to see if they provide guidance. Always verify that the actions you plan to take will comply. When in doubt, don’t guess… call ASN for assistance!
Questions, comments on this Hot Tip? Email Kathleen@asnnotary.org
Advice for All Notaries
“If I were a notary, I would…”
ASN Hot Tip, August 2010
“If I were a notary, I would…”
Allow friends or coworkers a “pass” on the physical presence requirement? Attempt to serve clients without the benefit of any notary education? Choose the notarial certificate for a transaction yourself, without taking the extra time to allow the signer to make the choice?
We trust that many of you wouldn’t do these things—in fact, you’d finish the phrase “If I were a notary…” with the kinds of conscientious and thoughtful statements recently sent by Washington State’s Notary Public Program (Department of Licensing) to all notaries commissioned in the Evergreen State. We think the plain talk and common sense of the message is so good it must be shared with all our members.
(We’ve added a few comments below, in brackets. Also, remember that your own state laws and rules may differ from Washington’s, so some details in the following comments may not apply perfectly to you. Even so, take inspiration from this advice!)
A Message To Our Notaries:
One of the functions of the Notary Public Program at the [Washington State] Department of Licensing is to impose sanctions when notaries have violated our notary public laws. Currently our sanctions consist of payment of a fine, completion of a notary education class, and (in the most serious cases) revocation of the notary license.
None of the Notary Public Program staff are notaries, but we’ve learned through the mistakes of others how we would behave if we were.
If I were a notary:
1. I would take a notary public education class to help me understand my duties and responsibilities as a notary public for the state of Washington [for wherever you are commissioned]. Although not required by our law, we recommend that every notary take a class.
2. Along with taking a class, I would thoroughly study the notary public law for the State of Washington, particularly RCWs 42.44.080, 42.44.090, and 42.44.100. [Be sure to review your own state laws for such essentials as authorized duties, certificate completion requirements and formats, and stamp and seal requirements.]
3. I would notarize only for signers who were physically in my presence. Period. No exceptions. Ever.
4. If I didn’t know a signer personally, I would carefully check the appropriate ID. If the signer had no ID, I would identify him or her by taking the oath or affirmation of a credible witness personally known to me and who also knew the signer. [Satisfactory identification requirements vary by state, but the point is you must never notarize without properly and satisfactorily identifying the signer before you.]
5. I would perform only those notary acts that are authorized under our law.
6. I would agree to notarize only if the document had a proper notary certificate. I would not add the notary certificate myself as that is (with few exceptions) the responsibility of the producer, receiver, or signer of the document. [Do not notarize unless the required notarial act is clearly indicated on the document. If the notarial certificate is missing, you may explain the differences between the possible notarial acts, show certificate samples, and ask the signer to choose. Only the signer or another party related to the transaction such as the document creator or recipient can choose the notarial act—you cannot!]
7. I would carefully complete every element required on the notary certificate.
8. I would keep a journal and record as much detail as possible about every notary act I performed. I would require every signer to also sign my journal. Keeping a journal isn’t required by our law, but it’s the prudent thing to do. [Whether you are commissioned in a journal-required state or not, you should always maintain a notarial journal for your own protection!]
9. I would decline to notarize in any situation where there is the slightest doubt that the signer understands the document, is competent to sign, or is signing freely, no matter how aggressively anyone else present might urge me to notarize.
10. I would think twice when asked to notarize for family, even though it’s not against our notary law. [This is expressly prohibited in other states.] I would request that they seek an impartial notary to avoid any appearance of conflict-of-interest on my part, especially concerning financial documents, powers-of-attorney, or wills.
11. I would understand that I am personally--and that means financially--responsible for every notarization I perform.
12. I would understand that notaries have been sued civilly and prosecuted criminally for everything from performing innocent-but-incorrect notary acts to actively participating in fraud with their notary stamps.
Questions, comments on this Hot Tip? Email Kathleen@asnnotary.org
Your data is safe with us! (read our privacy and security policy)