Section 7 - How to Perform a Notarial Act
Up to this point in the course, you have been learning about your appointment, your
commission responsibilities and your specific duties. Now, you will learn the step-by-step
procedures for performing notarial acts. Well talk first about the two aspects of
your duties that are the basis for preventing fraud; requiring the presence of the
signer and satisfactorily identifying the signer.
A. Presence Requirement
The presence requirement is the cornerstone of notary law. Unless the signer is
present, the notarization is false and punishable by Florida law:
"A notary public may not notarize a signature on a document if the person whose
signature is being notarized is not in the presence of the notary public at the
time the signature is notarized. Any notary public who violates this subsection
is guilty of a civil infraction, punishable by penalty not exceeding $5,000. It
is no defense that the notary public acted without intent to defraud."
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Physical Appearance. There must be a physical appearance of the document signer
before you at the time of the notarization.
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No Exceptions. Again, there can be no substitute for the presence of the signer.
The law does not allow the notary to call the signer on the telephone to verify
that he/she signed the document and then perform the notarial act. Unfortunately,
some notaries have lost their commission as a result of this violation.
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Penalties. Violating the presence requirement could result in a civil infraction
that is punishable by a fine up to $5,000 for each occurrence.
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Loss of Commission. If you violate the presence requirement, the Governor may exercise
his constitutional authority to remove the notary from office.
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Criminal Charge. Additionally, you could be charged with a crime. Florida law states
that it is a felony to make a false notarial certificate. If you state in the certificate
that a person appeared before you, when in fact they did not, you have committed
a felony crime.
B. Identification
The presence requirement is the cornerstone of notarial law. Equally important is
identification. These two together prevent fraud. You must document in the notarial
certificate the type of identification you rely upon in identifying a signer. This
is required by law.
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Types of Identification. Florida law provides a list of satisfactory identification
or evidence of identification and there are three general categories of identification
acceptable for a notarization. They are personal knowledge, a government-issued
identification card or the oath of a credible witness personally known to the notary
and who personally knows the signer.
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Personal Knowledge. According to Florida notary law, personal knowledge means having
an acquaintance and an association with an individual that establishes the persons
identity with at least a reasonable certainty.
Consider this example. Last night you met Sylvia, who was with your best friend
at a restaurant. Today Sylvia asks you to notarize for her. Would you be comfortable
in saying that you personally know her or would you ask for ID? If you apply the
definition of the law, you must ask for satisfactory identification. You must have
some personal interaction with an individual in order to say that you personally
know her. Make sure that you personally know a person before you certify that fact
in your notarial certificate. In this case, you just met her and it would be prudent
to ask for identification.
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Identification Documents. The most common type of satisfactory identification is
a card or document such as a U. S Passport, drivers license or any card issued by
a state or federal government agency that contains the photograph and signature
of the person making the acknowledgment or taking the oath. The identification document
must be current or issued in the last five years.
Dont rely on documents like birth certificates, social security cards, credit cards
or check cashing cards to identify your customer.
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Credible Witness Affidavits. Occasionally, a person will have no form of identification
and there is no way to obtain valid identification. This occurs most frequently
with senior citizens or with persons with disabilities who dont drive or travel
or who may be confined to their home or a healthcare facility. This may also be
the case with children. How can you identify one of these signers? You can allow
a credible person, one who is believable and trustworthy, and who personally knows
the signer, to identify the signer to you in a sworn written statement.
How it works: Your friend John calls and asks you to come to the home of his friend
Mary for a notarization. Mary is confined to a wheelchair and rarely leaves her
home. John visits her often and usually helps her with errands. Today, Mary needs
her signature notarized on a power-of-attorney giving her son the authority to handle
her financial affairs. The problem is that Mary has no form of identification. What
you have to do is have John give an affidavit about Marys identity. John must be
present for the notarization with Mary and you, the notary. John must also swear
to certain facts.
- John personally knows Mary.
- Mary is the person whose signature is to be notarized.
- John believes that Mary has no acceptable form of identification for the notarization.
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John believes that, due to Marys circumstances, it would be difficult or impossible
for her to obtain any form of acceptable identification.
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John does not have a financial interest in and is not a party to the transaction.
What happens if you do not personally know the witness? In this case, two witnesses
who personally know the signer can give sworn statements about the signers identity
and both witnesses must furnish one of the acceptable forms of identification. And
in both situations, the witnesses must be present with the signer for the notarization.
Credible witness affidavits are rarely used and are never used as a matter of convenience.
It would not be prudent to use this type of affidavit when a person has lost his
identification or just left it at home.
An example of a credible witness affidavit is shown below:
CREDIBLE WITNESS AFFIDAVIT of IDENTITY
Under the penalties of perjury, I declare that the person appearing before (name
of notary) is personally known to me as (name of person whose signature is to be
notarized) and is the person named in the document requiring notarization; that
I believe this person does not possess the required identification; that I believe
it would be difficult or impossible for this person to obtain such identification;
and that I do not have a financial interest in and am not a party to the underlying
transaction.
(Signature of Witness) Printed Name of Witness
State of Florida
County of ________
Sworn to (affirmed) and subscribed before me this ___ day of _________, (year),
by (name of witness), who is personally known to me.
(Signature of Notary) (Name of Notary Typed, Stamped, or Printed) Notary Public,
State of Florida
Here is another example of a credible witness affidavit that may be used when the
notary does not personally know the witness. Notice that two witnesses are preferred.
CREDIBLE WITNESS AFFIDAVIT of IDENTITY
State of Florida
County of ____
Under the penalties of perjury, I declare that the person appearing before (name
of notary) is personally known to me as (name of person whose signature is to be
notarized) and is the person named in the document requiring notarization; that
I believe this person does not possess the required identification; that I believe
it would be difficult or impossible for this person to obtain such identification;
and that I do not have a financial interest in and am not a party to the underlying
transaction.
(Date) (Witness
Signature) Printed
name of witness (Date) (Witness
Signature) Printed
name of witness
Sworn to and subscribed before me this ___ day of _______, (year), by (name of witness),
who produced _____________ as identification, and by (name of witness), who produced
_____________ as identification.
(Notarys Signature)
[Seal] Printed/typed/stamped
name of notary
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Detecting Fraudulent ID. Identification is extremely important and it is recommended
that you examine it carefully. Make sure the photograph and signature are legitimate
and if possible, the same. If you are not sure, ask for another form of identification
to verify or validate what has been presented. If you are ever in doubt, simply
decline to notarize. Here is a good resource for verifying identification. If you
have concerns whether a drivers license from another state is legitimate, you may
want to purchase The I.D. Checking Guide. This is a full color booklet is used to
verify identification cards, including drivers licenses, issued by all 50 states,
Canada and Mexico. Call Huckleberry Associates, Inc., to purchase this booklet.
C. Performing Perfect Notarizations
Here are the steps for performing a proper notarization:
- Require that the signer be Physically Present.
- Review and examine the Document.
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Make sure the Document is complete. Are all the pages there, including the signature
page?
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Make sure that the text is complete. The law does not require you to read the document,
nor should you have to understand the contents of the document. The only thing you
must do is to scan the document making sure there are no blank spaces or lines.
If there are blanks, have the signer complete the blanks with proper information
or put "NA" or "none in the blanks.
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Date of Document. The date of the document should not be later that the date of
the notarization. If it is, bring it to the attention of the signer. If the signer
chooses, he or she may change the date and initial the change or the notarization
must be postponed until the date of the document or any date thereafter.
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Notarial Certificate. Does the notarial certificate comply with Florida law? Later
in this course, we will discuss the elements in a certificate that are required
by law. You will want to look for the key words, sworn or acknowledged. These words
will tell you which notarial act you have to perform. You either have to administer
an oath or take an acknowledgment.
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Identify the Person. Make sure that you identify the person using only the acceptable
forms of identification previously discussed in this course.
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Complete the Journal Entry. Now it is the time to make you journal entry. Open your
Journal of Notarial Acts, fill in all of the information requested and ask the customer
to sign the journal while you review the document one more time. The reason you
want to complete the entry is that once you sign the document and put your seal
on it, the person is going to take it and leave. To protect yourself, please be
sure that you have complete and accurate records of the notarization and the customers
original signature is in your Journal of Notarial Acts.
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Perform the Notarial Act. Question the signer to make sure that he/she is capable
of understanding the document and is willing to sign it. Perform the notarial act
by administering an oath or affirmation, or taking the signers acknowledgment. Then,
perform the oral (verbal) ceremony. Without it, the notarization is incomplete and
could be later judged invalid. At this point, the person will also sign the document,
assuming that it is not an acknowledgment that was signed previous to the notarization.
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Complete the Notarial Certificate. The final step is to complete the notarial certificate.
D. Notarial Certificates
Now is the time to complete the notarial certificate that is required by law.
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Elements. Florida law requires the notary to certify specific information about
the notarial act in the notarial certificate.
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Venue. This is the location where the notarial act takes place. "State of Florida,
County of ___. "
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Type of Notarial Act. What type of notarial act is it? An oath which is indicated
by the word "sworn," an affirmation which is indicated by the word "affirmed." Or
is the word "acknowledged" used indicating that an acknowledgment was made.
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Note About the Signers Presence. These words, "before me" or "personally appeared,"
state very clearly that the person signing the document was in the notaries presence.
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Date of Notarization. The date the notarial act takes place must be included on
the certificate. If the date is already filled in and happens to be incorrect, you
may strike through it and write in the correct date and initial the change. Never
postdate or backdate a notarization under any circumstances.
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Name of Signer. You must state whose signature you are notarizing. If you dont,
it is to be assumed that the notarization is for all signatures.
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Type of Identification. Always indicate the state or country that issued the identification
card and if possible, be sure to write down the ID number and expiration date.
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Signature of Notary. Always sign your commissioned name. That is, the name your
notary commission was issued in by the state of Florida. Your commission name is
on your notary seal. Your signature must match the name on your seal.
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Print, Type, and/or Stamp Name. Florida law states that you print, type, or stamp
youre exact commissioned name below youre signature. This is for identification
purposes in the event that your signature is not legible. Where possible, impress
your notary seal below your signature to meet this requirement. Never stamp over
text!
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Notary Seal. Impress your notary seal near your signature. As mentioned above, do
not affix your seal on top of your signature, the persons signature, or any other
text. If you do not get a legible imprint, then affix the seal in a new location.
Sample Certificates
a. Jurat. Use this certificate when administering an oath or affirmation.
State of Florida
County of ______________
Sworn to (or affirmed) and subscribed before me this ___ day of ____, (year), by
(name of person making statement).
____Personally Known
____Produced Identification
Type and # of ID___________
(Signature of Notary) (Name of Notary Typed, Stamped, or Printed) Notary Public,
State of Florida
b. Acknowledgment Certificate. Use this certificate for an individual acknowledgement.
State of Florida
County of ______________
Before me (name of notary), notary public, State of Florida, on this day, personally
appeared (name of person making acknowledgment), known to me [or proved to me on
the oath of (name of identifying witness), or through (description of identity card
or other document)], to be the person whose name is subscribed to the foregoing
instrument and who acknowledged to me that he/she executed the same for the purposes
and consideration expressed herein.
____Personally Known
____Produced Identification
Type and # of ID___________
Given under my hand and seal of office this ___ day of _____, (year).
(Signature of Notary) (Name of Notary Typed, Stamped, or Printed) Notary Public,
State of Florida
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Corrections. Never use correction fluids or try to cover up information on the document.
Instead, line through any changes that need to be made. Remember to initial these
changes.
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No Notarial Certificate. So there is no notarial certificate on the document. Dont
panic! All you have to do is ask the signer what type of certificate is needed and
then type, print or stamp the certificate language on a separate sheet paper and
attached it to the document.
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Loose Certificates. Now that the person has chosen the certificate needed for the
document and there is no room below his/her signature, you are ready to add the
notarial certificate language to the document. You can do this one of two ways.
You could put the certificate on the back of the document or you could attach a
preprinted certificate to the document. However, when using these loose certificates
or attachments, make sure of the following:
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Make a permanent connection by simply making a note on the document to "see attached
notarial certificate" and then put the following statement on the notarial certificate:
"This certificate is attached to a (# of pages) page document dealing with/entitled
(state title or describe document) and dated (date). Be sure that the certificate
is securely stapled to the document.
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When attaching a loose certificate, here is a foolproof technique that Huckleberry
Associates came up with 30 years ago! We hope that you will use it to keep someone
from tampering with the document. Use your notary seal! Thats right. After the notarization
is complete and you have signed the certificate and applied your notary seal, lay
the document and the loose notarial certificate side by side on the table, being
careful to align the top and bottom corners. Then, affix your notary seal a second
time, half on the certificate and half on the document. Now, it takes both pages
to see the entire impression. You can even use an embosser seal. Line up the document
and the certificate page so that the top corners match, then impress the seal through
both pages at one time. Then, later when the document and the certificate are realigned,
the embossed seal will match! These simple safeguards will help you the notary,
prevent fraud.
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