Notary Public Information-When,What,Why,How,Where,Who Answered

Notary Public - Typical Duties

Many states require the presence of a notary public at the signing of legal documents. In the United States, a notary public serves as a legal, but impartial witness to a transaction. The presence of one at the signing of legal documents allows them to ‘notarize' that the documents were signed by the correct parties and that those parties freely entered into the agreement.

In many countries, the notary public is also a lawyer. In the United States, the presence of the impartial witness at the signing of legal documents does not require a law degree. Notarization does not prove the truthfulness of statements in a document, nor does it legalize or validate a document. Notarization also does not protect an author's rights in artistic creations or inventions. They can also not tell someone how to sign a form.

Notarization requires that the notary first screen the signer. This involves reviewing identity cards (e.g., a driver's license) or testimony from one or more credible identifying witnesses; the signer is responsible for bringing the necessary identification or witnesses. Once the screening is finished, the notary must complete the notarial act and record the action in a journal.

Every state in the United States possesses different requirements on how to become a notary public. Some directly appoint their notaries in the state legislature. Other states administer an exam and require a small annual fee. For the majority of states, the notaries are administered by the Secretary of State. This means a notary in California is not empowered to notarize documents in any other state unless they are also an appointed notary in that state.

A Notary Public's typical duties:

• Identity Verification for Signatures
• Record Sources of Identity (i.e. Driver's License, Passport, etc.)
• Provide Legal Witness to Loan Document Signatures
• Use of Notary Stamp to Provide Witness on Documentation

The lack of uniformity in the notary public system in the United States continues to mislead many immigrants where the services of a notary public are as legal adjuncts or advisors in their native countries. While many attorneys in the United States may prepare legal documents, they usually have a secretary or other office worker who is a notary public to affix their seal and signature for signings. For this reason, many states require that notary publics do not advertise their name in any translated form.

Mobile Notary Public - Witness on the Go

A mobile notary public will travel to a destination in order to witness and notarize legal documents. The difference between a mobile notary public and a standard notary public, is the former will travel to the signing of legal documents and the latter requires that the signers and legal documents come to them.

The rising demand for notarization of legal forms continues to climb through the housing boom, equity investments and identity theft. For some who have experienced the theft of their identity, there are new notarized packets of information that can be carried to verify that they are who they say they are and that they have been the victims of identity fraud.

A mobile notary public, much like a regular notary cannot refuse service to anyone based on their race, religion or lifestyle. They can, however, refuse to notarize a form if they are uncertain of a person's identity, willingness or mental capacity to understand what they are doing. They can charge a fee and many states have standardized fee schedules that notaries may charge.

A mobile notary public is going to account for travel time in their hourly fee rate. For example, when he or she must travel one hour to arrive at a signing and one hour back, they may include one of those hours if not both in their fee, even if the signing only takes thirty minutes. If they are in the area for another signing, they may not charge for the hour return trip or separate the travel time rate between the different clients.

If a company, business or individual requests notarization, they may or may not have to wait for the notary to arrive to handle the signatures. However, they will have to present their identification to the mobile notary public when he arrives and affirm that they did indeed sign the paperwork. However, if a document requires a jurat (Subscribed (signed) and sworn to before me ...), then that document must be signed in the mobile notary public's presence.

Jurat Or Not?

A jurat is a sworn statement before a notary public or mobile notary public. In order to execute a jurat on any legal documents or forms, the legal documents and forms must be signed in the presence of the notary public. When a mobile notary public executes a jurat, he is acknowledging and swearing that the signer's identity has been verified by legal documents and by his or her personally appearing and swearing their oath and affirmation.

The jurat is a guarantee for both parties with regard to the signing of documents. The mobile notary public will request legal documents and identification that prove the identity of the person or persons who will be signing the document. They must record the information in their journal along with the date, place of signing and usually the type of document that is being signed.

This legal record can then be used to support the validity of the signatures on the document. This can help support any claims both for and against fraud, coercion or misrepresentation. While the mobile notary public is not an officer of the courts in the United States, they can refuse to notarize a document or signatures if they believe coercion or lack of understanding is present in the parties signing the documents.

A mobile notary public cannot certify a death certificate or birth certificate. The Bureau of Vital Statistics and the County Clerk's office are the only places where those documents can be certified. In the case of a foreign birth certificate, the parties requiring certification will need to contact their embassy.

However, this does not mean a notary cannot notarize copies of other documents such as a copy of a driver's license, passport or diploma. This is called a ‘copy certification by document custodian." The mobile notary public would then be executing a jurat under the signed statement of the document holder that the copy is a valid and accurate copy of the original. This type of jurat is handy when it comes to submitting document copies or forms to update a legal name change or to obtain employment.

Power of Attorney - Power of the Notary Public?

In the United States, a notary public, mobile notary public or loan-signing agent does not have to be an attorney. A person is certified as a mobile notary public through an exam or appointment usually given a state legislature and managed through a Secretary of State's office. A person certified as a notary public in California is certified to act as a legal witness to the signing of legal documents in that state, but not necessarily in another.

Legal requirements, restrictions and ethics require that a mobile notary public or standard notary public may not:

• Give Advice on the Law
• Ask For and Obtain Legal Business
• May Not Divide or Agree to Divide Fees
• May Not Advertise Any Rights Not Given to the Notary by Law

The office of Notary Public is one of the oldest in the legal profession. Dating back to the earliest days of the Roman Empire, notary publics still act as legal agents in many nations of the world. In the United States, they are only legal witnesses and not agents.

A lawyer may also be appointed as a notary public and work as a mobile notary public to witness signatures on legal documents or as a loan-signing agent. The lawyer or attorney is able to dispense legal advice only if they have been admitted to the State Bar Association as an attorney. Their legal advice is given as an attorney and not as a notary public.

This is because a notary public is not required to be an attorney. A law degree is not a requirement for receiving appointment as a notary public. This is can be misleading for many immigrants and those not familiar with what a notary public is. A mobile notary public or any notary public's powers lay in their ability to confirm the identity of the signers and willingness to sign legal documents and then the witnesses thereof.

They cannot give legal advice. They cannot draw up any legal documents. They cannot solicit and obtain business for an attorney that they are affiliated with in order to generate a kickback for the referral. They cannot divide their fees or accept any part of a lawyer's fee. They cannot advertise their business or misrepresent it in anyway that would indicate they can do any of the above. In some states that means they cannot translate Notary Public into any language other than English because of the meaning in another country.

Living Wills versus Wills

A living will is a document that outlines specific wishes that apply to healthcare issues if you are still alive. It is not a will that deals with the dispensation of personal property following death. It states rather directly whether a person wishes to have artificial life support should they become terminally ill, enter a vegetative state or an irreversible coma.

The case of Terry Schiavo catapulted living wills into the national conscience. There are any numbers of reasons to draw up a living will, but the primary one that appeals to most people is relieving the family of the burden of caring for them in a state where they either cannot return from or would not want to return from.

It's important to recognize that a living will provides for a time when the individual cannot make the decision for himself or herself. When drawing up a living will, it's important to have self-proving witness statements notarized. A self-proving witness notarization protects the validity of the living will (and standard wills for that matter) in the following ways:

• If a witness predeceases the owner of the living will or will, the witness identity and self-proving statement still support the will and living will.

• Relocation from one state to another does not rescind validity of the witness statement.

• The wishes of the person in the will and living will are more likely to be followed without undue burden on the family.

Drawing up a living will takes into consideration the personal beliefs and feelings of the individual it applies to. A living will can support desires to prevent termination of medical care as much as support the maintenance of it. Once the living will is drawn up and the self-proving statements notarized, copies of it can be provided to the physician, health care surrogate or other trusted individuals. Canceling the living will is just a matter of destroying it, informing the people listed as the representatives and telling the health care doctor or provider.

Advanced Medical Directive versus Living Will

An advanced medical directive is another name for a health care power of attorney. The advanced medical directive is different from a living will because the advanced medical directive appoints someone as a health care surrogate to make medical decisions on behalf of the undersigned.

The advanced medical directive supports the surrogate in making decisions even when terminal illness or coma is not involved. The Advanced Medical Directive may also be folded in with a living will. Living Wills were authorized by state legislatures as a direct response to the Cruzan v. Commission, Missouri Department of Health decision.

In that case, Nancy Cruzan existed in a persistent vegetative state and was kept alive against the wishes of her family. There was no medical or legal establishment that allowed an individual to declare their wishes with regard to terminal illness in advance of any medical emergency.

The advanced medical directive and living will requires that individuals declare their intensions of whether to sustain life-saving procedures. Individuals should list the specific type of procedures they want or do not want administered. For example:

• Artificially supplied food or water.
• Surgery
• CPR
• Antibiotics
• Dialysis
• Chemotherapy

Most states allow for the combining of an advanced healthcare directive, living will and medical power of attorney into one document. Be sure to verify with the attorney or legal service drawing up the documents that this is supported in the state of residence.

In order to make the advanced medical directive valid the person filling out the document should be at least 18 years of age. The person must be sound of mind and must be acting of his or her own free will.

Most states require 2 witnesses; it's often better to have three. Be sure that the witnesses are not appointed to be the health care surrogate, related or entitled to receive anything in the actual last will and testament.

The notarization agent can refuse to notarize the self-proving statements if they do not believe the signer is signing it of their own free will or is not capable of making such a decision. The notary public must also witness the signer signing as well as the witness.

Power of Attorney

When a power of attorney is drafted, it creates a legal relationship between two individuals. Defined as the principal and the agent, the power of attorney authorizes the agent to act on the principal's behalf. A power of attorney can be a dramatic document establishing sweeping control over all business and personal decisions or it can be a limited power of attorney, drafted for a specific purpose.

For example, a real estate agent may ask for a limited power of attorney in order to negotiate on behalf of the buyers or sellers when it comes to negotiating a housing sale. Self-proving statements would be notarized supporting the signatures on the power of the attorney. Limiting transactions in the document are common practice in many business relationships, allowing the agent to act on behalf of the principal.

A medical power of attorney is a document that requires the signatures of competent adults. In a medical power of attorney the principal is trusting health care decisions to the agent in case the principal is unable to make the decisions for themselves. A living will is a very specific medical directive and is not a medical power of attorney.

A notary public cannot draw up a power of attorney or medical power of attorney. A notary public can notarize the self-proving statements of the principal, the agent and the witnesses to the power of attorney. They can notarize legitimate copies of the original document for filing elsewhere.

The self-proving statements can provide support for the power of attorney or medical power of attorney in the cases where witnesses are unavailable to corroborate their signatures or pre-decease the principal and the agent. The self-proving documents can provide security to the family of the principal that the wishes of the principal are carried out.

Notaries Dos and Don'ts

Notary Publics have differences depending on what state they receive their commission in. A Notary Public in California cannot notarize documents while in Florida. The dos and don'ts are also dictated to by legal policy state-to-state. For example, in Florida a Notary Public can perform a marriage ceremony for residents that have a Florida Marriage License.

Notaries have ancient roots and were empowered in the United States under an Act of Congress passed in 1850. A notary public is empowered by the individual states and subjected to the laws of those states. Notaries must do the following in most states:

• Verify Identification before Notarizing a Signature
• Keep Accurate Records of Notarization
• Charge a Reasonable Fee for Notarization as dictated by the State
• Not Refuse to Notarize a Document Unless:
  • The Notary Cannot Verify Identification
  • The Signers appear to be under duress
  • The Signers appear to not be of sound mind

Legal requirements, restrictions and ethics require that a mobile notary public or standard notary public may not:

• Give Advice on the Law
• Ask For and Obtain Legal Business
• May Not Divide or Agree to Divide Fees
• May Not Advertise Any Rights Not Given to the Notary by Law

A notary public does not have to be an attorney. An attorney can be appointed as a notary public. However, many attorneys also have a notary public available to handle the witness of signatures.

Who Needs a Notary?

A loan-signing agent for a bank or other financial institution is often a notary public. Their notarization serves as a legal witness to the execution of documents. They are not certifying that the documents are truth, only that they were duly executed and signed by the right parties. So how does this protect the people who need a notary?

In an age of identity theft, the notary public is the first firewall against misusing identity. This protects not only the individual, but also the financial institution. Imagine the chaos that would result without the notarization process when it comes to managing real estate docs, loan documents and other legal documents.

Many financial institutions have a notary public on staff. UPS stores and other package mail facilities also maintain one or more notary public's on staff. By verifying the identity of the person signing the documents with a driver's license and one other form of I.D. the notary will be able to confirm that the signature did indeed come from the person so named on the document.

Real estate docs include legal documents placing a lien on the property, power of attorney, affidavits and actual deeds may not be legally binding if altered, signed or executed without notarization. The notarization does not make it legal or true, it just means that the person who signed the document is vouching that it is true and binding for them.

Documents that might require notarization:

• Wills
• Deeds
• Bills of sale
• Mortgages
• Contracts (including leases, offers, incorporation papers)
• Releases
• Legal Pleadings
• Summary Eviction Notices
• Bankruptcy
• Affidavits

This list touches on only a few transactions that might need a notary. Because notarizing real estate docs can reduce identity theft and fraud, loan signing agents who also act as notaries are in demand. Independent notaries and mobile notaries are finding a great demand on their work time.

Practical Ways to Avoid Document Fraud

When it comes to document fraud, a company or individual may find themselves holding the short end of the stick if they are relying only on a piece of paper with signatures on it acknowledging that a contract exists. For example, a wife filling out loan paperwork may sign for her husband, but when it comes to the note being called due - her husband can legitimately claim he never signed it.

Identity Fraud

When this occurs, a company or corporation is left to jump through legal hoops to try and collect on the debt or risk writing it off as a loss. While this is an extreme example, there are a multitude of wives who will sign for their husbands on documents that need to be mailed in.

Consider also the number of companies that send out security documents like checks that grant a loan to the person who deposits the check. If that check is intercepted and deposited - the loan documents may be signed by a fraud and once again, the company is left to try and prove whether or not the signature is valid.

Document Security

Document security is something every company should invest in whether they are a multi-million dollar operation or a home-based one. Few documents require notarization outside of documents dealing in real estate and secured loans, but that does not mean that notarizing a document cannot provide a company with document security.

The primary reason behind notarizing a document is providing legal and verifiable proof that the identity of the signature has been verified. Notaries are required to carry an insurance bond so that in the event of a contract dispute or a claim of fraud in identity. If the notary is called as a witness and evidence is given that the notary failed to secure proof of identity, their insurance bond may cover the losses.

Avoiding Document Fraud

Avoiding document fraud and fraudulent signatures is a security measure that a company cannot afford to protect. The cost of notarization is a small price to pay in an era when identity theft and security threats are becoming a regular headline in the news. Avoid errors in judgment by securing documents against fraud by insuring the identity of the signatures.

Electronic Documents - Sealing the Future

Electronic documents and electronic mortgage documents are the wave of the Internet future. Keeping those electronic documents secure is the sound reasoning behind the launch of the Electronic Notary Seal Program. This program, endorsed by the National Notary Association involves the collaboration of industry leaders, Notaries and state governments in order to provide technologies, standards and practices for eNotarization standards.

While eNotarization may have existed for some time and legal documents, often delivered in the form of a non-adjustable Adobe PDF file could reach customers and consumers, this is the first time a truly unified effort has been made to protect the security of electronic documents with an electronic notary seal.

How Will It Work

The current plan for the Electronic Notary Seal Program involves cooperation between the various businesses, Notaries, National Notary Association and state governments to create a centralized authentication system. This centralized system would enable state officials to issue, revoke and monitor electronic notary seals in real time on the Internet.

The collaborative effort will also establish legislative and administrative guidelines so that electronic notaries will have an accountability factor in providing eNotarization for electronic documents and electronic mortgage documents. This collaborative effort will also ensure that the electronic notary seal will be accepted across state lines.

Technology Infrastructure

The final component to the collaborative effort will be establishing a consistent and secure electronic document infrastructure that will allow Notaries to view and notarize secure documents as well as transmit them. This is important, because an electronic notary may need to access the correct documents, provide the notary and transmit them back to the company. This ever-evolving area of electronic notary seal and electronic documents will be extremely beneficial to all aspects of business both on a corporate and personal level.

As this area of the notary business matures, be sure to validate that the electronic notary seal will be legal and acceptable in the state where the contract or electronic mortgage documents apply. The National Notary Association will continue to publish updates on the progress of the collaborative efforts as well.

Greater Need for Notaries

Notaries play a vital role in safeguarding and promoting identity protection, property rights, homeland security and fraud prevention. Their impact is already felt across the world. In an age when techno-terrorism, terrorist plots and identity theft are growing more prevalent, the expanding role of notaries is being seen in their work with Homeland Security.

Identity Theft is the Fastest Growing Crime in the Nation

Identity theft has topped the Federal Trade Commission's consumer fraud complains for more that five years. The high volume of identity thefts has created for Homeland Security an immediate security risk of national proportions. The National Notary Association continues to host identity theft symposiums to educate their notaries on their expanding role in preventing identity theft and fraud.

Statistics available at the National Notary Association website indicates that 4.6 million Notaries have detected and helped to prevent fraud as they perform verification and authentication for hundreds of sensitive transactions. Among the documents that Notaries regularly inspect identity verification and signatures for are mortgage documents, power of attorney, wills, medical powers of attorney and much more.

New Challenges for Notaries

With government and state agencies getting involved in tamper-resistant and technology proof identification documents, there are going to be procedural challenges for many Notaries to meet. Included in some suggestions are electronic forms of identification card that must be scanned and decrypted in order to obtain the pertinent data.

Homeland Security continues to exercise new measures in generating secure identification documents for immigrants, visitors and foreigners applying for residency within the United States. An immigrant resident cannot apply for their identification or other residency documents electronically in most cases and must appear in an Immigration office in order to have their identity authenticated and in some cases notarized.

Notaries are not just about legal security, but national security. Their expanding role is in an important feature in the war on identity theft and other high tech terror crimes that can affect national security.

Contracts & Disputes: One Does Not Have to Go with the Other

When it comes to contracts and law, most people think of a contract as either being locked in or providing a loophole. Loopholes in agreements are what keep attorneys in contract law busy as they go over all of the contingency statements. When a contract is in dispute, companies and individuals will spend a great deal of time and money in the courts trying to sort out the problems.

Legal Agreements

A contract is as simple as putting into writing an agreement between two parties. The signatures of the parties validate the contract in the sense that both have agreed to the stipulated terms. The difficulty when it comes to enforcing a contract begins with proving that a contract is valid.

A contract may be disputed by either party for reasons real or imagined. How the dispute is handled and settled may be contingent on whether the authentication of the document is possible. The first step in authenticating the validity of contracts and agreements is the presence of notarized signatures.

Saving Time and Money

Notarizing the signatures on a contract or agreement can save both parties in time and money because the identity of the signatures has already been authenticated. This can make a contract far more enforceable. This is true for partnerships, loans, real estate deals, mortgages and wills.

The notarization may not indicate a witness, but witness signatures on these legal contracts and documents may also be notarized to give proof of their identity. This can provide a relief from complication on the courts if any of the signatories have passed away prior to the legal dispute or contract dispute.

Investing in authenticated contracts from the beginning can save a great deal of time and money as well as stress if either party ends up in court with regard to the documents. Notarized contracts can also provide support and defense of a position on whether the dispute involves a stipulation in the contract or a matter affected by the contract.

Links 

National Notary Association

http://www.nationalnotary.com/

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