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NOTARIES PUBLIC

With the passage of Massachusetts Executive Order 455 regarding codes of conduct for Massachusetts Notaries Public, something as matter-of-course to the legal profession as being a notary comes to the forefront. Massachusetts is not alone in its efforts to strengthen procedures to be followed by notaries. Pennsylvania, California and Georgia have also passed recent legislation regarding training and/or notary conduct. And, in 2002, the National Notary Association released Model Notary Act of 2002.

While the process to become a notary and the procedures to be followed by notaries vary from state to state, there are general procedures that are typically followed.

TYPES OF NOTARIZATIONS

The purpose of a notarization act is to protect against fraud by verifying that the signer is who he or she purports to be and that the document is being signed as a free act and deed and not under duress. The signer must physically appear before the notary and verifiable identification must be provided. Though state laws differ, typically satisfactory evidence of identification will be two forms of identification such as a driver’s license, picture identification, passport or credible witness. A notary public does not certify, verify or testify to the contents of the document, but rather witnesses the identity, free will and sanity of the signer. If the notary is not comfortable with the identification or state of mind of the signer, the notarization should not be administered.

A notary may perform any of the following acts:

• Acknowledgment - The person(s) signing the document acknowledge(s) for themselves and/or in any representative capacity.
  
  
• Oaths or Affirmations - Whereby the person(s) signing the document take(s) an oath, make(s) a vow or otherwise affirm(s) to the truthfulness or fidelity under the pains and penalties of perjury.
  
  
• Jurats - Whereby the person(s) sign(s) a document in the presence of a notary and take(s) an oath or affirmation before the notary vouching for the truthfulness and accuracy of the signed document.
  
  
• Signature Witnessings - Whereby the notary simply notarizes as to the identity of the person signing the document.
  
  
• Copy Certifications - Whereby a notary is presented with a document, copies or supervises the copying of the document, compares the copy to the original and determines and notarizes that the copy is accurate, exact and complete.

The notary signature blocks will vary depending upon which notarial act has been performed.

RECORD KEEPING

Record keeping is an important function of notary procedures and is required in most states. Typically a notary should keep a journal. State requirements differ, however, in Massachusetts the journal must be a bound book with sequentially numbered pages in order to prevent pages from being removed or altered. Best practice dictates that recorded information includes:

• Date and time of the notarial act;
  
  
• Type of notarial act;
  
  
• Type, title, or a description of the document or proceeding;
  
  
• Signature, printed name, and address of each principal and witness;
  
  
• Description of the satisfactory evidence of identity of each person including (a) a notation of the type of identification document, the issuing agency,
  its serial or identification number, and its date of issuance or expiration; and (b) a notation if the notary identified the individual on the oath or
  affirmation of a credible witness or based on the notary's personal
  knowledge of the individual;
  
  
• Circumstances for not completing a notarial act;
  
  
• Address where the notarization was performed; and
  
  
• Any request to inspect or copy an entry in the journal, including the requestor's name, address, signature, and evidence of identity. If the notary public refuses to allow inspection, the notary public shall record the specific reason for the refusal.

For transactional purposes, it may be enough to note the client and closing where notary functions were performed.

INTERNATIONAL AUTHENTICATIONS AND APOSTILLES

When notarized documents are being sent to foreign countries, authentication will typically be required and is issued by the state authority (typically the secretary of state) where the notary public is commissioned. The certification confirms the existence of the notary public who has notarized the document.

An "apostille" is a specific form of an authentication certificate that is required by countries that are members of the Hague Convention. When submitting a document to the state authority for authentication, it is important to specify which foreign country is involved so that the authority's office can determine the authentication required. In order to obtain an authentication, the document must be an original signed by the executing party, bearing an accurate notary public's signature (exact name of the notary as it currently stands in the authority's records), date commission expires and notarial seal. Your preferred service company may assist in obtaining these certifications.

Documents being sent to countries that are not members of the Hague Convention typically require consulate authentication. More information on requirements or necessary consulate approval can be found at the local embassy for the target country.

CONCLUSION

Notary Public commissions are a necessity and a convenience to the practice of law. With increased attention to notary procedures and the inevitability of cybernotaries, LeapLaw subscribers are easily kept up-to-date on these important developments.

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