Category Archives: Notary Law

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

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

 

 

What is an Apostille?

An “apostille” is a form of authentication issued to a public document that has been signed for use in another country.
Public documents, such as  birth certificates, marriage certificates, judgments, corporate records, patents and notarized acknowledgments are frequently sent for use abroad and prior to 1961, went through a slow and costly process called legalisation.  Legalisation involves authentication in the originating country as well as the Embassy or Consulate of the destination country.

To streamline the process, a treaty, The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents was drafted on October 5, 1961 at the Hague Conference on Private International Law.

It allows participating countries to designate Competent Authorities to authenticate public documents in the country of origin and eliminates the need for additional authentication provided the document is for use in another participating country.

The country of destination determines if the document is authenticated with an apostille or requires certification through legalisation.  A list of countries that accept apostille is here.

As a participating country, the United States has three levels of Competent Authority;  Federal, U.S. Courts, and State.
The origin of the document determines which level authenticates it.

Federal authentications are conducted through the U.S. Department of State Authentications office.  This agency authenticates Federal executive branch documents such as FBI background checks.

U.S. Court  authentications  can be conducted by the Clerks and Deputy Clerks of the Federal Courts, or as an alternative, the U.S. Department of Justice can authenticate the seal of the Federal court and then the U.S. Department of State Authentications Office will place an apostille over that seal.

State authentication is most often conducted by the Secretary of State office, as it is in California.
There are two regional offices for the California Secretary of State:  Sacramento and Los Angeles.

The Secretary of State authenticates signatures only on documents issued in the State of California signed by a notary public or the following public officials and their deputies:

  • County Clerks or Recorders
  • Court Administrators of the Superior Court
  • Executive Clerks of the Superior Court
  • Officers whose authority is not limited to any particular county
  • Executive Officers of the Superior Court
  • Judges of the Superior Court
  • State Officials

The process of obtaining an apostille is relatively simple.  It can be done by mail or in person.
If by mail, the original document in question is submitted to the appropriate competent authority with applicable fees and return postage, and after authentication, the document and apostille certificate is returned to the sender.
Walk-in service is available at the Sacramento and Los Angeles offices Monday – Friday from 8:00am – 4:30pm on a first come, first serve basis.

Do you have urgent need for an apostille?
Totally Notary now provides expedited apostille document service.  Call for details!

©2015 Totally Notary All Rights Reserved

To Fingerprint or Not To Fingerprint…

I’ve executed over 17, 000 notarizations since I became a notary in 2012 and I established a policy from the beginning to obtain a thumbprint for every notarization, regardless the nature of the document.  It’s a great fraud deterrent and positively identifies the signer.  From my perspective, it provides protection for both the signer and the notary.
I have had only one individual refuse to submit a thumbprint.

In CA, if the document affects the transfer of real property or is a Power of Attorney document, the notary is required to obtain a thumbprint.
It isn’t required for other documents, but is recommended by the National Notary Association:

“It is a strong deterrent to forgery, as it represents absolute proof of the signer’s identity and proves the signer was present before the Notary.”

In 1996, CA passed the following law, California Government Code 8206 (a)(2)(G):
“If the document to be notarized is a deed, quitclaim deed, deed of trust, or other document affecting real property, or a power of attorney document, the notary public shall require the party signing the document to place his or her right thumbprint in the journal. If the right thumbprint is not available, then the notary shall have the party use his or her left thumb, or any available finger and shall so indicate in the journal. If the party signing the document is physically unable to provide a thumbprint or fingerprint, the notary shall so indicate in the journal and shall also provide an explanation of that physical condition. This paragraph shall not apply to a trustee’s deed resulting from a decree of foreclosure or a nonjudicial foreclosure pursuant to Section 2924 of the Civil Code, nor to a deed of reconveyance”

In the case of my reluctant thumbprint client, the document in question was not a deed or POA.  After I diligently recorded his full name, address, driver license number and date of birth in my journal, he expressed he was uncomfortable with giving his thumbprint, citing concerns of identity theft.

The client had complied with all the laws that govern notarization and his refusal to give a thumprint was not legal cause to refuse him service.  If his document had required it, however, I would have been unable to proceed.

Because I feel it demonstrates due diligence on my part and provides positive proof of the signer’s identity, which is a powerful fraud deterrent, I will continue to request thumbprints when I perform notarizations.  I’m confident that the majority of my clients will comply.

 ©2015 Totally Notary All Rights Reserved

The I-9 and what a CA notary should know

The I-9 (Employment Eligibility Verification Form)  has long been a source of confusion among CA notaries and a source of frustration for those new hires looking for someone to validate it.
Issued by the Department of Homeland Security’s U.S. Citizenship and Immigration Services, the purpose of the I-9 is to document the identity and employment authorization of new employees.

Notaries were first exposed to it when remote hires asked them to complete it for their distant HR departments.

According to the USCIS Handbook for Employers, employers “may designate someone to fill out Forms I-9 for you, such as a personnel officer, foreman, agent or anyone else acting on your behalf, such as a notary public“.  Based on that advice, the HR departments were instructing the new employee to find a notary public to complete it for them.

Most notaries didn’t know how to approach the I-9 because it doesn’t require notarization.  Some postal stores that employ notaries, like the UPS store, instructed their employees not to touch it.  It left the new hire out in the cold, frustrated by their inability to find a notary willing to assist them.

Prior to August 2014, a CA notary could lawfully assist an HR department in the capacity of an “authorized representative” and could complete the I-9 for a new employee.  The notary would examine the identification documents that the new employee presented and complete the form, not as a notary, but as an authorized representative of the employer.  There was no notarization involved.

In August 2014, Debra Bowen, the then current California Secretary of State and responsible for regulating CA notaries, declared that the I-9 was an immigration form, and as such, should only be completed by a licensed and bonded Immigration Consultant.  Only if the notary was also a licensed and bonded Immigration Consultant, could they complete it.

Per the National Notary Association:
UPDATE 8-25-14: Restrictions For California Notaries
“In August 2014, the California Secretary of State’s Notary Public & Special Filings Section clarified with the NNA that California Notaries who are not qualified and bonded as immigration consultants under the Business and Professions Code Sections 22440-22449, may not complete or make the certification on Form I-9, even in a non-notarial capacity. The Secretary’s office considers Form I-9 to be an immigration form. Any California Notary who is not an immigration consultant violates Government Code Section 8223(c).”

Immigration Consultants are few and far between.
When one searches for a Immigration Consultant on the CA Secretary of State Immigration Consultant Surety Bond website, you’ll see that many have lost their licenses and show the status of “Cease and Desist”.  That status occurs when “the immigration consultant failed to comply with the provisions governing the filing and maintenance of immigration consultant bonds or has not satisfactorily passed the background check.”

As a California notary that performs real estate closings and must maintain vigorous annual background screenings to stay compliant with loan signing certifications, I feel that I and other notary signing agents are often more qualified and meet higher background screening standards than that of Immigration Consultants.  I also feel that as notaries, we are in the business of examining identification documents and are uniquely qualified to complete the I-9  Employment Eligibility Verification Form.

It is my hope that now California has elected a new Secretary of State, Alex Padilla, the subject of I-9 verification will be revisited and hopefully, reconsidered.  Limiting I-9 verifications to Immigration Consultants places an unnecessary burden on the new employee to locate a qualified individual when notaries public are widely available and accessible.
Six months after the Secretary of State’s determination, I continue to receive calls about the I-9 and would welcome the opportunity to resume that service for my clients.

©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

National Notary Public Day – November 7th and the History of the Notary Public

National Notary Public Day

November 7th is National Notary Public Day and was first established in 1975 as a day to “recognize notaries for their public service and their contributions to national and international commerce.”

The date of November 7 was chosen in recognition of the day that America’s first notary, Thomas Fugill, was appointed.  Fugill’s appointment by the Colony of New Haven occurred on October 25, 1639 (Julian calendar), November 7 on the Gregorian calendar now in use.

History of the Notary Public

[Source: National Notary Association  (http://www.nationalnotary.org/) and the
Informed Notaries of Maine (http://www.informednotariesofmaine.org)]

The practice of the notary public dates back to ancient Roman times when few people were taught to read and write. A notarius was appointed as a public official to create written documents of agreement or wills and hold them for safekeeping.

Wax seals with individualized engravings or symbols were used as signatures at the end of the written agreements. In later centuries, ribbons were woven into multiple page documents to tie the pages together. Seals were placed over the knots to ensure no pages were added or removed. This was the birth of the notary seal and certificate.

In colonial America, persons of high moral character were appointed as public notaries to certify and keep safe documents of shipping and bills of lading for transatlantic shipping.

Around the globe today, there are three major, distinctly different notarial systems, each associated with a different kind of Notary: the Civil Law Notary system of the Latin nations, the Common Law Notary system of the English-speaking nations, and the Notary system of the United States, which is derived from the English Common Law system but quite different. The following selective historical accounts provide illuminating background information on the evolution of the three modern systems of notarization.

Ancient Egypt: Old Kingdom: 2750-2250 B.C.

ancient egyptian scribesAncient Egyptian “sesh,” or “scribes,” were established in the Old Kingdom and were the earliest known chroniclers of official communications in recorded history. The tools of their craft were pigments, water pots and writing implements, which they often carried over their shoulders. Scribes made up an entire level of ancient bureaucracy and were the only citizens who were aware of almost every noteworthy event in the empire. Personal letters, diplomatic communications, wills and other legal documents, official proclamations, tax records, administrative, economic, and religious documents, and other documents all went through their hands. The closing phrase of their ancient letters, “May you be well when you hear this,” implies that the scribes not only wrote but also read communications between two people. The recording of events was so highly valued that Pharaoh Tutankhamen even included writing equipment among the necessities he had with him for the afterlife. Today, there are preserved copies of the efforts of some scribal apprentices whose works have been corrected in red by their masters.

 Roman Empire, Corpus Juris Civilis of Emperor Justinian: A.D. 535

Corpus JurisThe true ancestors of Notaries were born in the Roman Empire. Many regard history’s first Notary to be a Roman slave named Tiro, who developed a shorthand system which he called notae for taking down the speeches of famed orator Cicero. Other witnessing stenographers came to be known asnotarii and scribae. torian notesTheir historical development was shaped by Roman Private Law which, in AD 535, culminated in the Corpus Juris Civilis of Emperor Justinian. Part of his new law was novella 44, the first Notaries Act. Six hundred years later, the glossarists of the law school of Bologna rediscovered the “novels” of Justinian, and adapted them for the use of a new class of medieval legal officers: the international Notaries. As literacy was not widespread, the Notary, or “Notarius” as they were called, served to prepare contracts, wills, and other important documents for a fee. As the Roman Empire grew and literacy increased, demand for the Notary also increased. Soon, Notaries were being used in the empire provinces of what are now England, France, and Spain.

 Order of the Knights Templar: 1099-1307

Clergy of the Order of Knights TemplarThe Poor Fellow Soldiers of Christ and the Temple of Solomon, more commonly known as the Knights Templar, were a monastic military order formed at the end of the First Crusade with the mandate of protecting Christian pilgrims on route to the Holy Land. From humble beginnings of poverty when the order relied on alms from the traveling pilgrims, the Order would go on to have the backing of the Holy See and the collective European monarchies. Within two centuries they had become powerful enough to defy all but the Papal throne, and created the modern system of banking, mortgages and loans. The Clergy of the Order were highly educated and became the critically important Notaries for all Templar business, official documents, orders and proclamations. The Templars had grown rich and powerful, and amid unsubstantiated rumors of heretical practices, King Philip the Fair of France saw an opportunity to fill his own coffers at their expense. He had all the Templars in France arrested and pressured Pope Clement V to suppress the order. Clement V ordered one of the Order’s Notaries to record the coerced confessions of scores of Order members. On Friday, October 13th, 1307, King Philip had all the Templars arrested on the grounds of heresy, since this was the only charge that would allow the seizing of their money and assets. With the forced notarized confessions used as key evidence, many Templars were tortured, banished or burned at the stake. Ever since then, the superstitious have considered Friday the 13th a day of bad luck.

 Notaries Public in England: 13th and 14th Centuries

notary england 13 14 centuriesNotaries were not introduced into England until later in the 13th and 14th centuries as English common law developed free from most of the influences of Roman law. Notaries were often appointed by the Papal Legate or the Archbishop of Canterbury, and in those early days many were members of the clergy. Over the course of time members of the clergy ceased to involve themselves in secular business, thus the laymen in towns and trading centers began to assume the official character and functions of a modern Notary.

Then in 1533 the enactment of the Ecclesiastical Licenses Act — also known as the “Peters Pence and Dispensations Act” — terminated the power of the Pope to appoint Notaries and vested that power in the King. Traditionally, Notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required. In the Middle Ages, Notaries were sometimes asked to witness the consummation of marriages involving royalty. The other emphasis on notarial acts was the importance of the Deed. In Roman law countries only Court judgments carried any special force, but, as Notaries ceased to be dependent on judicial authorities more and more force was given to their Authentic Acts, as they are called. It was Louis XIV of France who abolished the last vestiges of the ancient dependence on judicial authority and granted to each Notary a seal with the Royal Arms. The modern Notary must still employ his seal, but that is now for him to design personally and to guard carefully.

 Notaries and the Conquests of Columbus: 15th Century

15th century notaryNotaries accompanied Columbus on all of his voyages to ensure to King Ferdinand and Queen Isabella that all discovered treasures were accounted for. Thus, Notaries during this time enjoyed a special relationship to the truth. They witnessed noteworthy acts, from the spectacular — like when Columbus first beheld the New World in 1492 by landing on San Salvador Island in the Bahamas — to the humble and mundane: the promise of a dowry, an apprenticeship, or a loan. It then fell to Notaries to shape the messy specifics of each event into the proper form to be committed truthfully to the page. Not just any written language would do. Manuals with specific itineraries of meaning were used in Europe and the colonial Americas to guide these men in regularizing the endless diversity of people’s actions and language into the approved formula. Notaries were thus truth’s alchemists, mixing the singular into the formulaic in accordance with prescribed recipes to produce the written, duly witnessed, and certified truth. The marks of this stylized, notarial truth are everywhere in the archives of Europe and the Americas, in documents that aggressively demand the reader’s belief in the Notary’s word. Even the most routine transactions are full of formulaic professions of the Notary’s faithfulness and appeal to the notion that he was there — present at the scene, a trustworthy eyewitness — properly equipped to register what mattered. From this dedication to truth was born the modern notarial certificate.

 Notaries in Early America: 1600-1800

In Colonial America, only persons of high moral character were appointed as public Notaries to certify and keep documents safe. Their fundamental contributions to colonial life and the founding and development of the United States are largely seen as the reason American business became a huge success. For example in colonial times, Notaries were invaluable to trans-Atlantic commerce, as parties on both sides depended on them to be honest third parties in reporting damage or loss to a ship’s cargo. While Notaries were held in very high regard during this time, life for Notaries in early America was anything but easy. A Notary’s work supported government, commerce and private life, all of which were filled with conflict between the colonies of the New World and the empires of the Netherlands, England, Spain and France. Adriaen Janse van IlpendamMany Notaries were faced with huge challenges of authority and relevance during the era of rapid political and cultural change. Some were even killed for their involvement in authenticating official documents and recordkeeping as conflicting factions fought for control of the New World. Others saw their fortunes and celebrity either increase, or decline depending on the ever-changing power structure. The most intriguing story of a Notary’s early struggle lies in the life of Adriaen Janse van Ilpendam, a Dutch immigrant to “New Amsterdam,” whose career as a Notary led him to an uncertain existence after the English took over, renamed the region “New York,” and replaced English with Dutch as the region’s official language. As a result, van Ilpendam took his own life in 1686, as his place in society had all but evaporated. Despite the early struggles of Notaries, their certificates and seal of office remained prima facie evidence that an official act occurred and was authentic. 

John Coolidge and President Calvin Coolidge: 1872-1933

John  CoolidgeJohn Coolidge was born in 1845 and was 78 years old when he came to fame as a Notary Public in Plymouth Notch, Vermont. He had owned the village store, was a town leader in Plymouth, was a member of the state legislature and had been a state senator. His family had been among the original settlers of the town after the Revolutionary War. His son was Calvin Coolidge, born in 1872. calvin coolidgeAfter attending the town’s one room schoolhouse, the younger Coolidge went on to the local academy where he was encouraged to go to college, the first one in his family to attend. He became involved in the Republican Party and was elected Vice President under Warren G. Harding in 1921. When Harding died in 1923, Coolidge was sworn in as the 30th President of the United States by his father – the only president to ever be sworn in by a Notary. Coolidge is a very important President with respect to Notaries. The public trust that Coolidge earned is reflected by his having held 10 elected positions – a number far greater than that of any other President in our history. His lesson for Notaries was that, unlike other Presidents, he consistently demonstrated the courage to say “no” when warranted. This is something that Notaries, as public officials, are also expected to do. An important basis for his high ideals and ethical integrity came from his commitment to the founding principles of our country, including the defense of property and personal rights. In fact, Coolidge and Abraham Lincoln were the only two presidents to have been experts on the Declaration of Independence and the Constitution.

 ©2014 Totally Notary No Rights Reserved

 

Unauthorized Practice of Law (UPL) and Notaries Public

Notaries are “ministerial” officials which means their duties are limited to the specific procedures established by their state law and they cannot exercise any individual judgment or discretion.
A “judicial” official, by contrast, is given broad discretionary authority by comparison.

It is considered Unauthorized Practice of Law (UPL) for a Notary to offer legal advice or draft documents for another person, unless they are also an attorney or a trained and credentialed expert in a relevent field.
A Notary may not even choose for the signer the type of notarial act to perform if the document does not contain notarial verbiage.  The Notary must explain the difference between an Acknowledgment and a Jurat and allow the signer to select which notarial act they want or have them contact the originator of the document for guidance.  If the signer has a question about a document, they must be referred to an attorney or the documents issuing or receiving agency for an answer.

Acts that Constitute the Practice of Law

  • Preparation, drafting or selection or determination of any legal document
  • Giving advice in relation to any legal document or matter

If a Notary is asked to perform such tasks, they should decline and refer the requester to an attorney.  To do otherwise is considered Unauthorized Practice of Law (UPL) and grounds for civil and criminal penalties.

©2014 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