by Tami Kamin-Meyer, Attorney at Law
July 31, 2008
You’ve probably had documents notarized, but did you know why? Is there really a purpose or benefit to having a document notarized?
Definitely, says Tim Reiniger, executive director of the National Notary Association. Having a notary public witness a signature is a “powerful risk management tool to prevent fraud and identity theft,” he says.
A notary public is a third-party witness to not only the signature of a document but also the fact that all parties who signed did so willingly and under their own power.
Having a document notarized does not necessarily mean the parties signing it understand what it says. However, Marc Aronson, president of the Pennsylvania Association of Notaries, says the responsibilities of a notary should extend beyond merely witnessing a signature. “Most notary laws don’t make it the notary’s responsibility to know whether parties are competent,” he says, “but I think it is the notary’s responsibility that people involved in a transaction know what’s going on.”
Still, he adds, “a notary public is not a policeman.”
Chief among the reasons to have certain documents notarized is that having a document notarized is a deterrent to fraud, Aronson says. Getting agreements notarized adds a layer of verification that “the people who signed the document are the people they say they are,” he says.
Notarization not only makes it more likely that signors are who they say they are but also is mandatory in some states for certain agreements, such as deeds, mortgages, easements, powers of attorney and living wills.
Having certain papers notarized also is important when disputes are litigated; affidavits, which are sworn statements, will not be considered by a court unless they are notarized. Attorney Stephen E. Chappelear, partner-in-charge of the Columbus, Ohio, office of Hahn Loeser + Parks, LLP, recalls a case in which opposing counsel did not have affidavits notarized. They filed them with the court anyway, but the court did not accept them. The time period for discovery had passed, so Chappelear’s opponent had to proceed with the case without the information contained in the affidavits. While Chappelear, a civil litigator in both state and federal courts, eventually won that case, he’s not sure it was only because of those missing affidavits. Still, the experience taught him a lesson about the importance of notarizations.
Notarized documents also are considered self-authenticating, which means the signers do not need to testify in court to verify the authenticity of their signatures. Having a document notarized is “a huge strategic advantage” in litigation, Reiniger says.
As with everything relating to notary publics, each state has its own rules about the authorities extended to notaries. For example, in West Virginia, a notary public’s main powers are verifying signatures, administering oaths and affirmations, and certifying that a copy of a document is a true copy of another paper. However, in Florida, a notary public also may perform marriages, even for family members, assuming a valid wedding license exists.
In order for a notary public to notarize a document, the person whose signature is being notarized must sign the document in the notary’s presence. The person can’t sign the document ahead of time and then bring it to the notary. In some states, the notary must specify how he or she identified the signers to the document (e.g., the signer presented a photo ID, the notary already knew the signers).
Each state determines if a notary must administer an oath to document signers. While there is no prescribed language, the oath generally includes language requiring the signer to swear or affirm that statements contained in the agreement are true.
Often, there is a fee to have a document notarized. The maximum amount a notary public may charge for services is regulated by state law.
Every state has laws governing who can become a notary public, the requirements to be a notary, which state government office oversees notaries and how long a commission to be a notary public lasts. Some states require candidates for notary public to take a written exam before receiving a notary commission.
Reiniger estimates that approximately 4.5 million notaries work in the U.S. That figure does not include the millions of attorneys who also are vested with that authority by virtue of being lawyers in certain states, such as Louisiana, New York, Ohio and Wisconsin. Though attorneys in these states don’t have to take a test, and their notary public commission never expires, they must abide by the same rules as non-attorney notaries.
Some states, including California, Colorado, Florida, North Carolina and Pennsylvania, allow electronic notarizations, or e-notarizations. An e-notarization occurs when a notary public affixes a digital signature to an electronic document. The fundamental rules governing notarization still apply, including the requirement that document signers appear before the notary.
An electronic document is one that exists in a computer-readable format rather than merely as printed words on a physical page. Examples are word processing documents, e-mail messages, PDF files and even documents scanned into the hard drive of a computer.
Tami Kamin-Meyer is an Ohio attorney also licensed in federal courts and the U.S. Supreme Court. She is a freelance writer and Ohio correspondent for Legalnewsline.com, a website about state attorneys general and state Supreme Courts.