| Notary
Public Best Practice Summary
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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. 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 drivers 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.
When
notarized documents are being sent to foreign countries, authentication will typically
be required and is issued by the state
authentication authorities (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. Cybernotaries A
"cybernotary" is a hybrid of the typical notary and would possess the
authority and responsibility to perform all the standard acts of a notary in countries
which follow the Romano-Germanic civil law tradition by electronically certifying
and authenticating all elements of an electronic commercial documents necessary
for its enforceability under U.S. and foreign law. A cybernotary will use digital
signatures to certify the identity of a person or entity originating a commercial
message, thereby preventing the originator from later repudiating the message
(attestation and registration). 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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