How to and Why? How to perform notarial acts

//How to and Why? How to perform notarial acts

thank you for your interest in the washington state notary public program. this trainingis designed to cover the basic information needed for a notary public to perform notarial duties throughout the state. the department of licensing regulates the notary public profession and strongly recommends that if you are interested in notary education, you seek out additional information, including other publications distributed by the department of licensing and the notary laws and rules posted on other state websites, in order to ensure that you are as prepared as possible to perform your notarial duties. in this course, we will be discussing the steps required for performing notarial acts and key rules that you must keep in mind while performing your duties. specifically, for the steps required for notarial acts, we will be discussing how to identify signing parties, confirming the signing party’s mental state, and how to correctly perform notarial acts. for the rules notaries need to remember, we will will be discussing the physical presence requirement, and the unauthorized practice of law in notary practice. for other subjects or questions, feel free to examine the other publications put out by the department of licensing, as well as the laws and rules posted on the washington legislative website.

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the most important function of a notary public is to confirm the identity of an individual signing a document. historically, this was one of the original purposes for the notary public profession. by confirming the signing party’s identity, the notary is confirming that the signing party is who they say they are, and that they are doing so of their own free will, which we will discuss momentarily. there are three ways to identify a signing party: by using identifying documents, personal knowledge, or by a credible witness. identifying documents are the most common way to confirm a signing party’s identity, where you can identify the signing party’s identity by looking at some document that confirms who they are. samples of these documents include a driver’s license, a passport, or other government-issued id card, and other documents may be allowed if they properly confirm the individual’s identity through a photo, signature, and/or the party’s name. you should pay attention to the expiration date of the document; you can accept identifying documents that are current or less than three years expired. so as an example, a notary performing notarial acts on july 1st, 2018, can accept identifying documents that are expired no later than july 2nd, 2015. personal knowledge is probably the easiest method of identification to use if the situation allows it. you can consider an individual identified if you have enough of a personal connection that you could attest to how you know them in court. this generally means that a person needs to be more than an acquaintance to be personally identified, so a person that you have just met during the signing does not meet this standard. the exact details are not perfectly clear, so if you have questions about this, you should consider asking an attorney or the department of licensing for clarification. finally if you cannot use the identifying documents or personal knowledge, you may be able to use a credible witness to identify the signing party.

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both you and the signing party must have a personal connection, like with the personal knowledge requirements above, with the signing party. additionally, the credible witness must be able to provide identifying documents for themselves as well, as with the requirements above. another essential part of the notary public role is to identify that the signing party in a transaction is doing so other their own free will. this generally breaks down into three factors: competency, knowledge, and voluntariness. if a signing party lacks one of these, for example if they are not competent to sign a document because they are underage, then you should refuse to notarize the document. other examples of situations where you may wish to refuse to sign for this reason include: when the signing party is signing under duress, or because someone else is forcing them to, when they do not read, write and/or understand the language of the documents begin signed. if they are intoxicated or under the influence of drugs or if they are mentally infirm. if you have any concerns about the signing party’s competency, knowledge or voluntariness, you may also ask questions and talk with them to try and get more information before making a decision about whether or not to notarize the document. once the notary has confirmed the signing party’s identity and mental state, the last step in this process is to perform the notarial act. performing a notarial act requires three parts: identifying the notarial task requested, recording the act in the notary’s journal, and completing the notarial certificate. the certificate and the journal can be completed in either order, but only after the notary has identified the correct task being requested of them. in the state of washington, there are seven possible notarial tasks that a notary may be asked to perform.

these are: taking an acknowledgement, witnessing or attesting a signature, administering an oath or affirmation, taking a verification of an oath or affirmation, certifying or attesting a copy, receiving or noting a protest of a negotiable instrument, and certifying an event has occurred or an act has been performed. we will go through each of these in more detail in turn. the first of these notarial tasks is taking an acknowledgement. taking an acknowledgement involves a customer bringing the notary public a document that they have previously signed, and having them confirm, both verbally and in a notarial certificate, that they were the ones that previously signed it. take for example a customer coming in with a contract that they’ve signed, that they need to get notarized. the customer signed the contract back when the deal was made, so they can’t sign it in front of the notary, so the notary can take an acknowledgement instead, and confirm that the customer signed the contract previously. this usually takes the form of a notary asking formal questions to confirm that the document was signed willingly and knowingly, such as "are you signing this document of your own free will?" and "are you aware of the contents of this document?" there are two different notarial certificates for taking an acknowledgement, based on whether the customer signed the document for themselves, or if they signed in a representative capacity, meaning that they signed on behalf of someone else or a company. the certificate for signing as an individual has a standard list of information required on it, including the venue and a statement of particulars that lists the signing party and the date. the certificate for signing as a representative has additional information required, because the notary will need to identify who they are signing on behalf of, and what authority the signing party has to sign on behalf of them. the next notarial task is witnessing or attesting a signature, where the notary confirms a signature either being performed in front of them or previously. the difference between those two is the difference between witnessing and attesting the signature; if a signature is witnessed, the signing party signs the document in front of the notary, but if the signature is attested, the signature is signed previously and brought in for a second signing to verify the first signature. the biggest difference between witnessing or attesting signatures and taking an acknowledgement is the amount of ceremony behind the notarial task. taking an acknowledgement involves the notary asking and requiring a response about whether the signing party knows what they are signing and that they are doing so willingly, but attesting or witnessing signatures does not. for the latter, the notary does not need to ask these questions, and merely confirms that the person signed the document. the third notarial task is administering an oath or affirmation. when administering an oath or affirmation, the notary is responsible for having and witnessing an individual swearing to uphold a duty or obligation. this task is unique in several ways. first, because there is no certificate, there is nothing for the notary to affix a seal or stamp to. second, the difference between an oath and an affirmation is a matter of faith; an oath is where a person swears to a deity, whereas an affirmation usually refers to a person swearing on their honor, without reference to any deity. the fourth notarial act is to take a verification on an oath or affirmation, which is a common combination of two other notarial acts. also known as taking a jurat, taking a verification on an oath or affirmation is a combination of witnessing a signature and administering an oath or affirmation. as part of this act, the notary first witnesses the signing party sign a document. once the document is signed, the notary then has the signing party swear an oath or affirmation that the contents of the document are true and correct. once the notary has done both of these, they can complete a notarial certificate that covers the combined jurat to complete the act. because this is a combination of several different notarial acts, it is very important to check the notarial certificate’s statement of particulars in order to confirm that the signing party needs a jurat and not one of its parts instead. a sample statement of particulars would state "signed and sworn to (or affirmed) before me on (date) by (names of individuals making statement)." notice the "and" in that statement, it is a good indicator that the customer needs a jurat. the next notarial act is certifying or attesting a copy, where a notary certifies that two documents that the signing party needs verified are identical. note that a notary is perfectly allowed to verify a copy that they themselves have made for a customer, which is certainly faster than meticulously comparing two documents, but either way is acceptable. however, there are several types of documents that cannot be legally copied, usually marked by some variation of the phrase "do not copy" and a notary should avoid copying any documents that they are forbidden to copy. the sixth notarial act is to receive or note a protest of a negotiable instrument. if you are listening to this, you’ve probably never done one of these. protesting a negotiable instrument is part of financial practices in nations outside of the united states, which can have substantial impacts on foreign business dealings. the law requires that a notary who performs this act only do so if under the authority of a licensed attorney or a state or federally regulated financial institution. because of the tremendous impact this act can have, and the relatively limited circumstances where a notary may perform this act, any notary that does not have the above authority and specialized training should refuse to perform this act. additional information is beyond the scope of this training. the final notarial act is certifying an event has occurred or an act has been performed. this act is a bit of an odd duck, because it represents such a wide range of potential notarial acts. for instance, if a customer requests a notary to confirm that they appeared before them alive on any given date, a notary can confirm this as an event that occurred. on the other hand, if a customer needed to certify that they had eaten a five-pound burrito, a notary could use this duty for that as well. regardless of what the notary is certifying, the notary needs to make sure that they can confirm from either personal knowledge or satisfactory evidence, which generally requires an oath or affirmation of a credible witness, that the act or event occurred. considering the notary is confirming that this event occurred or act was performed, they need to be certain that that event or act actually happened. additionally, the notary should be careful to make sure that a document does not require a more specific notarial duty. as part of the notary practice, all notaries public must maintain a physically bound journal of all notarial acts. this requirement exists to create a log of all notarial acts as a protection in case a signor or other interested party challenges a notarization or files suit against the notary. that’s a fancy way of saying it needs to be an actual book, and it can’t be a three-ring binder. but this is for your own good. these journals are generally available for purchase from any place where you could purchase office supplies, including several popular online marketplaces. there are five required elements for a notarial journal entry, listed on the right-hand side of the screen. if a journal does not contain these five elements, it is not sufficient to meet the journal requirement, and you should consider purchasing a journal that has all of the required elements. on the other hand, if a notarial journal contains additional information, this is not just allowed, but encouraged. in fact, the more information that a journal contains, the better, because the better record will translate to a better defense in case of litigation. this includes additional information such as driver’s license numbers, thumbprints, and any other important details that the notary believes can be helpful for identifying the signing party. please note that the notary laws require that the notarial journal be kept in a locked and secured area, under the exclusive control of the notary public. there are two separate requirements there; first, the journal must be kept in a locked and secured environment, such as a locked drawer or a safe, and that it must be kept under the exclusive control of the notary. this means that communal locked and secured areas such as office safes and secured facilities by themselves are not sufficient for journal security. also, note that this security requirement is the same as the stamp or seal security requirement, so they can be kept in the same area. it’s important to keep in mind the pair of notarial journal exceptions that exist in the rules and statutes, and to be clear whether these exceptions apply in any given situation. the first and largest exception for the notarial journal is an exception for notaries who are also licensed attorneys. specifically, this exception states that a notary that is also an attorney does not have to keep a notarial journal if their firm keeps documentation of their notarial acts. there are two important parts to this; first, the notary must be a licensed attorney. the language of the statute is clear that this exception only applies to attorneys, which means that it does not extend to limited practice officers or limited license legal technicians, which are licensed by the washington state bar association but are not licensed attorneys. it also does not extend to other office staff in the attorney’s law firm, such as paralegals, office managers, and other support personnel. the second exception for the notarial journal is designed to reduce the amount of paperwork that notaries have to fill out as part of their responsibilities. this exception states that a notary who performs multiple notarial acts on the same day and for the same customer can consolidate them into a single journal entry. this means that an entire day’s notarizations can be put into single line on the notarial journal, but only for a single customer. also, the exception requires that the journal entry include the number of notarial acts that are being consolidated. keep in mind that, as mentioned earlier, a notarial journal entry can include additional information about the notarial act to make a more complete record, and the more information about the multiple journal entries being consolidated, the more complete of a record the journal is. the last part of the notarial act is the physical act that goes along with being a notary public, where the notary fills out the notarial certificate, signs it, and physically applies their seal or stamp to the notarial certificate. the notarial certificate generally includes four elements, a venue, a date, a statement of particulars, and a signature line, and if one of these is not present, the notary should complete the certificate before filling it out, with the exception of the statement of particulars. the statement of particulars designates what kind of certificate it is and exactly what the certificate is attesting to, which is the customer’s choice. adding or making changes to this can be construed as legal advice, which is generally outside the scope of the notary public profession. similarly, a notary may provide a blank notary certificate for the customer, but cannot select the type of certificate; a customer that needs a certificate should be shown the options and asked to select the proper certificate to that the notary avoids providing legal advice. the last major topic to go over is that there are a couple of rules that affect the entire notary profession and that deserve special discussion. the first of these rules is the rule of physical presence. as a general rule, any notarial act must be performed in the physical presence of the notary. this means that notaries public may not notarize documents over the phone, or over the internet through video communications software such as skype and facetime. in july of 2018, the notary rules changed to allow notaries to perform electronic notarizations, which allows notaries to perform notarizations on electronic documents. however, the signing parties must still all be in the physical presence of the notary. the second major rule is that notaries are not allowed to practice law without also being licensed as an attorney by the washington state bar association. generally, this means that a notary should not provide legal advice to clients unless they are also a licensed attorney. giving legal advice is a difficult concept to define, but in more broad terms, a notary should not provide advice or answer questions about the contents of a document, nor should they fill out any substantive parts of the document being notarized. a notary who is asked to perform any of these acts is allowed to, and should, refuse to perform those acts, and may wish to direct the customer to seek the advice of an attorney. thank you for taking the time to research how to perform notarial acts. if you have any questions or comments, please reach out to the department of licensing by phone or email for more information. if you would like updates about alerts or changes to notary rules and laws, sign up for the notary public listserv to receive additionall emails on the subject. thank you, and have a great day.

2018-07-12T00:43:35+00:00 July 12th, 2018|Categories: How To.. for My Online World|Tags: , |