Section 6 - 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. We'll 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 Missouri 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.
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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 or loss of your
notary commission.
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Loss of Commission. If you violate the presence
requirement, the Secretary of State 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
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. Missouri 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. 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,
and credit cards or check cashing cards to identify your customer.
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.
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Mary is the person whose signature is to be notarized.
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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. The notary must know the individual and
must have that individual sign in the notary journal.
5. 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:
1. Require that the signer be physically present. There is only
one exception to this rule according to the Missouri law. We recommend that the
signer always appear before the notary. In certain cases a person may sign a document
in the presence of another person then that person becomes an executing witness.
Here is what the law says concerning an executing witness. 486.340. Executing witness
definedform of affidavit of executing witness.as used in this section, the words
"executing witness" means an individual who acts in the place of a notary.
2. An executing witness may not be related by blood or marriage
or have a disqualifying interest as defined in section 486.255.
3. The affidavit of executing witness for acknowledgment by an
individual who does not appear before a notary shall be in substantially the following
form:
I, __________ (name of executing witness), do solemnly affirm under the
penalty of perjury, that __________. (name of person who does not appear before
a notary), personally known to me, has executed the within . . . . . (type of document)
in my presence, and has acknowledged to me that __________. (he) executed the same
for the purposes therein stated and requested that I sign my name on the within
document as an executing witness __________
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Subscribed and affirmed before me this . . . . . . . day of . . . . ., 20 . . .
. . . . . . (Official signature and official seal of notary)
4. Review and examine the Document.
5. Make sure the Document is complete. Are all the pages there,
including the signature page?
6. 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.
7. 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.
8. Notarial Certificate. Does the notarial certificate comply with
Missouri 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.
9. Identify the Person. Make sure that you identify the person
using only the acceptable forms of identification previously discussed in this course.
10. Complete the Journal Entry. Now it is the time to make your
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.
11. 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.
12. 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. The notary should 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 Missouri , 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 Missouri
. 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. Missouri 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.
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Sample Certificates.
a. Jurat. Use this certificate when administering an oath or affirmation.
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State of ______________
County of ______________
Subscribed and sworn to before me _________ of ________ in the year _________ .
____________________________
Notary Public
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b. Acknowledgment Certificate. Use this certificate for an individual
acknowledgement.
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State of ______________
County of ______________
On _________ day of _________ in the year _________ , before me, the undersigned
notary public, personally appeared _________ , known to me to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged that he/she/they
executed the same purposes therein contained. In witness whereof, I hereunto set
my hand and official seal.
____________________________
Notary Public
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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:
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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