Category Archives: Notarizations

Does an Application for Duplicate or Paperless Title ( DMV REG 227) Need a Notary?

When the title of a California vehicle is lost, a replacement can be ordered from the DMV by submitting REG 227 and paying a duplicate title fee.

Often people mistakenly believe REG 227 needs to be notarized before it is sent to the DMV.  While it is true that the REG 227 has a notarization certificate at the bottom of the first page, it isn’t meant for most requestors.  It applies specifically to Section 5.

Click to enlarge
DMV REG 227

Section 5 LEGAL OWNER OF RECORD RELEASE OF OWNERSHIP AND/OR INTEREST—Must be notarized   is for situations where a lienholder is releasing interest in the vehicle once the debt has been satisfied.

In most cases, unless you are transferring ownership, only Section 1 and 3 are completed to request a duplicate title and neither require notarization.

©2017 Totally Notary All Rights Reserved

Limited Power of Attorney – Appoint Totally Notary to be your Attorney-In-Fact

When someone is unavailable to sign real estate documents due to absence or illness, it is often possible to arrange a limited Power of Attorney for another person to sign the documents on their behalf.   A limited Power of Attorney (also known as a Specific Power of Attorney) grants limited executive powers to a designated person (the agent) to act on the behalf of a signer (the principal).  The agent is also referred to as an Attorney-In-Fact.

A limited Power of Attorney is usually utilized for a specific process or matter, unlike a General Power of Attorney which grants broader authority.  It may also be effective for a limited period of time.

A few examples where a limited Power of Attorney may be used:

  • Accountant :  A principal might grant a limited Power of Attorney to his accountant, so the accountant can act on his behalf with taxing agencies.
  • Banker:  A principal might grant one to his investment banker, so the banker can have the power to make investment decisions on his behalf.
  • Legal Document Signing:  The principal might use a limited Power of Attorney to designate an agent to sign contracts or documents on his behalf.  The documents could be related to business operations or the purchase, sale or refinance of real estate.

The limited Power of Attorney document itself will specify the authority the agent will have and includes detailed instructions from the Principal.  It requires notarization.
If the limited Power of Attorney is to be utilized in a real estate transaction, the title company and lender (if applicable), must approve the limited Power of Attorney prior to use.  In many cases, the title company will have a specific template they prefer the principal to use.

Once the principal has signed and notarized the limited Power of Attorney, the agent then has the legal capacity to transact business and to sign on behalf of the principal, as if the principal himself were doing it.

Some reasons why a limited Power of Attorney might be used  to sign real estate documents:

  • The principal is traveling out of the country or working out of state
  • The principal is ill and indisposed
  • The principal is elderly and signing would be an ordeal
  • The principal cannot sign legibly
  • The principal prefers to skip the tedious signing process

Totally Notary is an experienced licensed, bonded and insured notary public that specializes in real estate documents and is well versed in the execution of Power of Attorneys.

If you are unavailable to sign your real estate documents and need an agent to sign on your behalf, call Totally Notary.  With Helen signing on your behalf as your attorney-in-fact, you can have confidence that your documents will be executed accurately and confidentially.

©2017 Totally Notary All Rights Reserved

The General Power of Attorney for India and the Role of Witnesses

Some documents have the legal requirement that the signer’s signature be witnessed.  This is primarily to prevent forgery.  The witnessing requirement may be in place or in addition to a notarization requirement.

One of the most common documents that require both witnessing and notarization is the General Power of Attorney for use in India.
The purpose of this Power of Attorney is to grant power to an resident of India to act as an agent for a purchase or sale of property on behalf of a resident in the United States.
Unfortunately, many signers misunderstand the purpose of the witnesses.  They mistakenly believe that the purpose of the witnesses is to validate the content of the document or to verify that the Principal (the signer) understands the legal document they are signing.  Acting on that misapprehension, the signer often requests the witnesses sign before the signer takes the document to the notary to be signed and notarized.
The primary duty of the witness is to watch the signer physically sign the document to prevent forgery.  If the witnesses sign before the signer does, they have failed in their primary duty.

Sometimes a witness also certifies they have personal knowledge of the signer.  For example, a Canadian Transfer of Land document requires the witness to personally know the signer and be willing to certify that the individual who signed the document was indeed the person named in the document.

Who can be a witness?

The witness should be an adult at least 18 years old and impartial. The witness should neither be named in the document, nor benefit financially from its signing,  The witness should be of sound mind. The best witnesses are those that know the signer such as friends, neighbors, or co-workers.

What other documents are witnessed?

Mortgages, Power of Attorneys, Last Will and Testaments, Deeds, Advance Health Care Directives and foreign documents related to property transfer.

What if the document needs to be witnessed and notarized?

Ideally, the signer, witnesses and notary would meet at the same time.  When done that way, the witnessing and notarization occur in one step.  Mobile notary services are usually the best way to accommodate all parties in this situation.

If that is not possible, this alternative is permissible in CA:

CA law allows a document that requires an Acknowledgment notarization (like most Power of Attorneys) to be signed in advance and then presented to a notary for notarization.  Provided the signer appears before the notary, furnishes satisfactory evidence of their identity and “acknowledges” that they signed the document prior to coming before the notary, the notary can perform an Acknowledgment notarization.

Based on that scenario the following steps would apply:

  • The Principal (signer) signs the Power of Attorney while the witnesses watch (which satisfies the witness requirement)
  • The witnesses sign that they observed the signature (It is recommended that they print their name below their signature)
  • The signer then takes the signed and witnessed  POA to the notary
  • The signer provides satisfactory evidence of his identity and acknowledges to the notary that he signed it prior to appearing before the notary
  • The notary performs an acknowledgment notarization

©2017 Totally Notary All Rights Reserved

Notary Challenges—How to notarize a sleeping signer

Most mobile notarizations are prompted by a signer that is unable to come to the notary due to ambulatory limitations.  They may be ill and bedridden or just frail and elderly.  They may still live at home or be a patient in a residential care home or the hospital.  These notarizations can be problematic.  Thorough screening when scheduling is important to prevent wasted travel.  Most of the time, it’s a family member that makes the call to the notary to schedule.  Some questions to ask:

  • What document will be notarized?  Is it an Advanced Healthcare Directive?  This is important because if the patient is in a skilled nursing facility an ombudsman will need to be present when the signer executes the document.
  • Does the signer have valid photo ID?  Many of the elderly let their driver license lapse once they stop driving and do not replace it with a DMV Senior Citizen ID card.  If they do not have valid ID, two credible witnesses (unrelated to the document) would be necessary to identify the signer.
  • Do they have the physical ability to sign legibly?  Weakness and injury can affect the signer’s ability to sign in a recognizable fashion.  Sometimes the signer can only make a mark.  If that is the case, two witnesses (unrelated to the document) would need to be available to watch the signer execute the mark.
  • Do they have an awareness and willingness to sign the document?
    If the signer lacks the capacity to understand what they are signing, the notarization cannot proceed.
  • Are they taking medications that might impair their ability to understand what they are signing?  Are they taking narcotics or sedatives?  If they are, it is important that they do not take the medications prior to the notary meeting.

Despite the best made plans and attempts to pre-screen the signer, things don’t always go as planned.

I was scheduled by the spouse to meet with her bedridden husband, a resident of a residential care home, to notarize a General Durable Power of Attorney.  Despite careful screening, the first words out of her mouth after the introduction were, “They gave him something and he’s sleeping.  I’ll need to wake him up.”

Needless to say, the signing was ajourned.

The best laid plans of mice and notaries often go awry, despite best intentions.

©2017 Totally Notary All Rights Reserved

What’s the difference between a Certified document vs a Notarized document?

When a copy of a document is requested by a government agency or other entity, it is often specified as Certified, Notarized or Original.
In California, the notary is prohibited from “Certifying” documents with the exception of Power of Attorney documents and their own journal entries.  Some other states do allow the notary to do so, which can cause confusion if the requesting agency is located outside California.

Certified documents:
Certified documents (or certified copies) are often requested for important documents such as vital records.  Examples of vital records are birth certificates, marriage certificates, divorce decrees and death certificates.  The original vital record remains on file with the jurisdictional agency (usually the county).  As custodians of the original document, only the agency that issued it can certify the copy of it.  Contrary to popular belief, one’s birth certificate is not an original document, it is a certified copy of the information on file at the county.

In California, if a customer asks a notary to “Notarize” their birth certificate or any other vital record, the notary should refer them to the county where it is filed so they may apply for a certified copy.

Notarized documents:
Notarized documents are documents where the identity and signature of the signer has been verified and witnessed by a notary at the time of signing.  The notary’s signature and stamp will usually be present on the document as proof of the notarization.

Original documents:
Original is simply that.  It is the original document you received from the issuing agency.  It is not a copy or duplicate.  An example would be your current passport.  When applying for a passport renewal, the original is generally sent back with the renewal application.

It is routine for foreign governments to require Certified or Notarized copies of original documents when processing passport, visa and OCI renewals and applications.  CA prohibits the notary from certifying that the photocopy is a true and correct reproduction of the original document, but the custodian (owner) of the document may and their statement can be notarized.

Per the National Notary Association:

“In states where Notaries are prohibited from certifying copies of documents, there is an alternative procedure called a copy certification by document custodian. This procedure allows a person in permanent possession of an original document to sign a written declaration that a copy of it is identical to the original, and take an oath or affirmation before the Notary.

The custodian’s signature is then notarized on the written declaration using jurat wording. In essence, a copy certification by document custodian is an affidavit signed and sworn to by the custodian with a jurat as the notarization. Remember, the custodian, not the Notary, guarantees that the copy is an authentic reproduction of the original.”

Once the customer has written their statement on the photocopy, the notary will place them under oath and the customer will sign their statement.  The notary will then execute a jurat notarization.  If there is room on the document and the notary has notarial verbiage stamps, they may notarize directly on the document.  If there is no room to do so, the notary will attach a jurat notary certificate.

©2017 Totally Notary All Rights Reserved

Volkswagen’s Individual Release of Claims notarization rejected?

On September 18, 2015, the United States Environmental Protection Agency (EPA) issued a notice of violation of the Clean Air Act to Volkswagen after it was determined that Volkswagen had intentionally programmed TDI diesel engines to activate emission controls during smog tests, which caused the vehicles to meet US standards during the test, when in reality they were releasing 40x more NOx (Nitrogen Oxide) during real-time driving.
Volkswagen stated that 11 million vehicles are affected worldwide and 500,000 are in the United States.

The Volkswagen/Audi Emissions settlement program offers owners of affected vehicles two options: modification or buyback.  The owner submits their selection with an Acceptance of Offer Letter.

The Acceptance of Offer Letter contains an Individual Release of Claims form that requires the notarized signatures of all title owners.  Once signed and notarized, the claimant sends the documents back to Volkswagen using the Online Claims Portal, mail or fax.  If mailing, the documents go to Michigan.

Many California volkswagen owners have reported that the notary certificate in their Individual Release of Claims form was rejected by Volkswagen.

The form’s certificate contains the following format:

WITNESS:

State of_________________________________ )
XXXXXXXXXXXXXXXXXXXXXXXXXx) SS
County of ______________________________ )

I, ______________________________________, a Notary Public in and for said County in the State aforesaid, do hereby certify that __________________________________, who is personally known to me and the same person whose name is subscribed to the foregoing instrument appeared before me this day in person and acknowledged that they signed, sealed, and delivered the same instrument as their free and voluntary act for the uses and purposes therein set forth.

My seal:                                              __________________________________________
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXNOTARY PUBLIC

CA law allows a notary to use an out of state notary certificate if the document is going out of state and it does not violate CA state law. Volkswagen’s Individual Release of Claims document appears destined for Michigan, so in theory a notary might assume they could utilize the notary certificate it contains.  The sticking point is the verbiage.  This certificate states that the notary personally knows the signer.  California is the only state that prohibits a notary from using personal knowledge as a means of identifying a signer.
Per the 2016 California Notary Handbook:
“Identity is established if the notary public is presented with satisfactory evidence of the signer’s identity. (Civil Code section 1185(a)) Satisfactory Evidence – “Satisfactory Evidence” means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the individual is not the individual he or she claims to be and (A) identification documents or (B) the oath of a single credible witness or (C) the oaths of two credible witnesses under penalty of perjury, as specified below:the notary must rely on government issued identification documents to establish satisfactory evidence as to use satisfactory evidence supported by government issued identification documents.”

To be compliant with California law and to prevent rejection while processing this form in California, the notary is strongly urged to attach a CA all-purpose acknowledgment in lieu of executing the enclosed certificate.  It is also recommended to write or stamp “See Attached” in the form’s notary section, which references the loose certificate that is stapled behind it.

©2016 Totally Notary All Rights Reserved

 

 

Witnesses can complicate a simple notarization

Most documents don’t require witnesses or notarization, but occasionally a document will require both.  It can complicate matters because usually the witnesses, notary and signer must be together when the document is signed.

Who can be a witness?  Any legal adult that does not have financial interest in the document being signed.  The most common source for witnesses are neighbors, co-workers and friends.

The document may be a Will or Advanced Health Care Directive related to a Living Trust or it may be a real estate document that transfers real property located in the state of Connecticut, Florida, Georgia, Louisiana or South Carolina.  Some common documents that would require a witness are Grant Deeds, Warranty Deeds, Quit Claim Deeds, Mortgages, and Deeds of Trust.

State Requirements:
Connecticut:
Two witnesses required (one witness may be the notary)
Florida: Two witnesses required (one witness may be the notary)
Georgia: One witness required (cannot be the notary)
Louisiana: Two witnesses required (neither can be the notary)
South Carolina: Two witnesses required (one witness may be the notary)

Some foreign documents require witnesses in addition to the notarization and often the signers don’t understand that the witnessing and notarization must occur at the same time.
If the document requires an Acknowledgment notarization and the signer signs prior to appearing before the notary, the notarization can still proceed provided the signer acknowledge they signed the document.  If, however, the document requires a Jurat notarization, the signer will need to resign the document once they are before the notary, after the notary administers an oath.

For these reasons it’s generally recommended that the signer wait to sign until they’re before the notary.  While it certainly can be complicated to coordinate signers, witnesses and a notary, utilizing the services of a mobile notary who can travel to the signer’s location can simplify matters and is often the best solution in these situations.

©2015 Totally Notary All Rights Reserved

Notary Challenges — The Elderly, Skilled Nursing Facilities and Ombudsman

Notarizing for the elderly can present a unique set of challenges.

  • Their identification can be expired.
    -If so, two impartial credible witnesses may be required
  • They can be physically weak from illness or injury which makes signing a document difficult
    -If so, they may need to “Sign by Mark”, which also requires two impartial witnesses to watch and sign their names as witness.
  • They may be taking medication that causes impairment
    -In this case, the notarization must be postponed until the signer is aware of what they are signing
  • They may be a patient in a Skilled Nursing Facility (SNF)
    -If the document is an Advanced Health Care Directive (AHCD), an ombudsman will be required to witness the signing of the document and the ombudsman may require an appointment.
  • They may be incapacitated or unwilling to sign
    -The signer must be willing and aware or the notarization cannot proceed.

In many cases, a family member calls to schedule the appointment for mobile services.  Their elderly relative may still be at home, but more often, they are either a resident in an assisted living senior facility or a patient receiving short or long-term care in a medical facility.  They may be in a local hospital or residing in a long-term convalescent facility, or they may be receiving treatment in a skilled nursing facility (SNF).   A skilled nursing facility is a medical facility that is licensed, regulated and inspected by the Department of Health Services and  provides 24hr medical care.

Most of the time, I am called to notarize Power of Attorney documents or some type of proof of life document so the senior citizen may continue to received their pension or insurance benefits. If the document is an Advanced Health Care Directive (AHCD), however,  and the signer is a patient in a skilled nursing facility, there are special witness requirements.
In California, a patient advocate, called an ombudsman, needs to be present and serves as an official witness to the signing of the document.  If the Advanced Health Care Directive is signed without an ombudsman witnessing and certifying the execution, the document is not effective and will be invalid until resigned in front of an ombudsman.
Per Probate Code Section 4675:
(a) If an individual is a patient in a skilled nursing facility when a written advance health care directive is executed, the advance directive is not effective unless a patient advocate or ombudsman, as may be designated by the Department of Aging for this  purpose pursuant to any other applicable provision of law, signs the advance directive as a witness, either as one of two witnesses or in addition to notarization. The patient advocate or ombudsman shall declare that he or she is serving as a witness as required by this subdivision. It is the intent of this subdivision to recognize that some patients in skilled nursing facilities are insulated from a voluntary decisionmaking role, by virtue of the custodial nature of their care, so as to require special assurance that they are capable of willfully and voluntarily executing an advance directive.
(b) A witness who is a patient advocate or ombudsman may rely on the representations of the administrators or staff of the skilled nursing facility, or of family members, as convincing evidence of the identity of the patient if the patient advocate or ombudsman believes that the representations provide a reasonable basis for determining the identity of the patient.

As a California notary public, I must follow a code of professional responsibility.  Not only am I responsible for establishing the signer’s identity, I am also required to determine their awareness of what they are signing and their willingness to do so.
Notarizing for elderly clients can be challenging, but with advanced screening and a little preparation, most notarizations can be completed successfully.

©2015 Totally Notary All Rights Reserved

Important Documents – how long should they be kept and how should they be stored?

Often during the course of notarizing a loan document or trust, I’m asked by the client how long should they keep the document and how they should store it.

According to financial experts, it varies depending on the document.

Some documents like wills, trusts and powers of attorney should never be discarded and are best stored in a safe-deposit box with other important papers like birth certificates, death certificates, marriage licenses, divorce decrees, military discharge papers and social security cards.
It’s also recommended that copies of the will, trust or powers of attorney be given to the attorney or executor of the estate and an extra copy should be maintained at home for ease of reference.

If the document is related to a loan, like a home mortgage, vehicle or student loan, the documents should be kept until paid off.  Once the loan is paid off, retain the documentation proving it was paid in full and keep that in a secure location like a safe-deposit box.

Some documents, like tax filings, fall under statutes of limitations.  In the case of tax returns, it is recommended to keep them for 7 years, the maximum time in which the IRS can order an audit if they suspect fraud.

For a complete list of document categories and recommendations, see these helpful guides:

Consumer Reports Money Advisor – Conquer the Paper Piles
Suze Orman – Financial Clutter, What to Keep and What to Get Rid Of

©2015 Totally Notary All Rights Reserved

California Notary Law Update – Senate Bill 1050

Effective January 1, 2015, the forms and wording of the California Acknowledgment, Jurat and Proof of Execution certificates are changing to include the following consumer disclosure:

“A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.”

While this may seem an unnecessary adjunct to the notarial certificates, which after all already include prescribed notarial verbiage that state the limits clearly, the intent of SB 1050 is to reduce fraud by including a clear consumer notification statement as to the limited effect of a notary’s seal and signature.

2015 CA Acknowledgment
2015 CA Jurat

law_scaleCalifornia does love its consumer disclosures! Just how many states feel it’s necessary to advise the consumer that drinking gasoline can be harmful and put a sticker on the pump to warn them?

But seriously, in this case I can see the value of such a disclosure.
As a California notary, I am frequently approached by customers with out-of-state or foreign documents that request the notary public do something that would be in violation of CA notary law.
The laws that govern notaries vary from state to state.  The document originators usually prepare the document to be compliant with their own states notary law.  When the document is signed in another state, the notarial act must follow the states laws where the signing takes place.  The customer is often frustrated and doesn’t understand why we can’t “just stamp it.”

By law, a document notarized in California must contain prescribed notarial verbiage.  If it doesn’t, and many out of state / foreign documents either lack the verbiage or their states verbiage is deficient by CA standards, it must be corrected by either attaching a loose certificate or by stamping the verbiage on the document to make it compliant.

The exception to this rule is if the document requires an acknowledgment and will be recorded in another state.

Per the California Secretary of State:
“A notary public may complete a certificate of acknowledgment required in another state or jurisdiction of the United States on documents to be filed in that other state or jurisdiction, provided the form does not require the notary public to determine or certify that the signer holds a particular representative capacity or to make other determinations and certifications not allowed by California law.”

In California, we cannot certify copies of documents with the exception of Power of Attorney documents and our own notarial journal entries.  I am frequently asked to “notarize” or certify photocopies of identification documents; driver licenses, foreign passports, Permanent Resident Cards, and U.S. Citizenship and Immigration forms for foreign passport renewals and other purposes.  California law prohibits that, but in many cases, an alternative procedure may be permissible:

Copy Certification by Document Custodian:
Copy certification by document custodian is the process where the holder of an original document writes a statement attesting to the accuracy of the photocopy  and their statement is then notarized. In effect, the owner of the document is certifying the document, not the notary public.
The statement may be hand written directly on the photocopy.  The custodian or holder of the document must then select which notarial act, acknowledgment or jurat, the notary will execute.  The notary will then perform the notarization and attach the notarial certificate to the photocopy.  If the photocopy has the room, the notary may stamp the notarial verbiage directly on the photocopy before signing and sealing.

©2014 Totally Notary All Rights Reserved