Notarial Practice: Duties and Responsibilities of a Notary - Essay Example

Notarial Practice I. Assignment Written Assignment A. How does a notary accomplish his task of verifying the identity, authenti and will of the person that appears before him' The job of a notary is to administer truthful oaths and declarations, draw factual powers of attorney, and attest to the authenticity of the signature, execution and contents of documents, deeds and contracts. This makes notaries the sole guardians of the integrity, veracity and reliability of public documents. How then does a notary serve to prevent fraud and protect the public against deceitful and injurious documents' Any notary worth his salt will start the notarial act with a thorough reading of the document including, and especially, the fine print where riders usually hide. Thus, the Attorney General of Hawaii, which oversees the notarial practice in that state, strongly warns notaries against performing the notarial act unless they are absolutely satisfied that the document they are certifying is true and correct. This calls for the trained eye of a newspaper editor who is quick to spot grammatical errors, misspelled names and places and reports initiated by PR hacks. If such inaccuracies slip through the editor's attention, he and his newspaper will have a price to pay. The consequences are worse for a notary who mistakenly validates or notarizes an untruthful and incomplete document. Once the document up for certification is determined to be above board, the next logical step for the notary is to ascertain the identity, authenticity and will of the person who will sign the document. The cardinal rule in notarial practice is that the document's signatory must appear in person before the notary. The law is quite equivocal in this regard. In the US state of Maryland, for example, its Secretary of State expressly forbids the notarization of the signature of a person who has not appeared before the notary. If the notary has personal knowledge of the signer, this makes his job a lot easier. In such a case, his personal guarantee of the identity and authenticity of the person is embodied in the notarial clause that says: "'John Doe is known to me to be the person described in and who executed the foregoing instrument." If the notary has no personal knowledge of the signer, it is his responsibility to check the person's identity. The law is so stern about this identification process that it is not enough that the signatory to the document is known to the notary personally or makes an appearance before the notary. Common sense dictates that you cannot always trust the intentions of even people of your acquaintance. They may be what they say they are, or sign the document in the presence of the notary, but are they entering into the notarial act on their own free will' Don't they harbor any mental reservations about the document' It is the responsibility of the notary to find this out. On the effort to determine the identity of the person involved, it behooves the notary to double check the person's identity through a "competent evidence of identity." This refers to a valid identification document issued by a legally constituted establishment or agency bearing the photograph and signature of the individual. (Supreme Court of the Philippines) An evidence of identity that could satisfy a notary is a driver's license, a passport, a social security card or a voter's ID. But in the notarial imperative, even these documents do not by themselves constitute a complete and competent evidence of identity. The possibility always exists that the identification document being presented to a notary may be forged or adulterated. It takes an expert eye nowadays to detect the difference between an authentic document and a well-executed forgery. So to be absolutely sure, a good notary seeks a match between the picture in the identification document and the actual appearance of his client, and between the signature in the ID and the signature the person executes in the notary's presence. In the process, the notary requests the party to sign his name and then compare this sample signature done in his presence with that reflected in the identification documents. (Maryland Office S.O.S.) Other more meticulous notaries go further than that. They bring in an impartial and credible witness to testify to the identity of the person involved in the notarial act through an oath or affirmation. This witness knows the person being notarized but has no personal interest in the transaction. Sometimes, two such witnesses are used under the same process and conditions: both know the individual and are not privy to the instrument or transaction on hand but are credible enough to be relied upon as credible witnesses to the true identify of the person signing the document. In some cases, the signatory in a notarial transaction may be incompetent in the legal sense, such as when he is a minor, blind, illiterate or approaching senility. Faced with any of these circumstances, the notary is obliged to consult an attorney as to the appropriate legal remedies. Usually, the handicapped persons are made to sign by thumb mark, to be attested by at least two impartial witnesses. The notarial certificate would then be so drafted as to indicate the presence of these marks. Example: X (mark of John Doe). Through the signatory of the document to be notarized, a notary also seeks further confirmation or collaboration on the integrity and truthfulness of the transaction. So he administers an oath or affirmation asking the individual: "Do you solemnly affirm under the penalties of perjury and upon personal knowledge that the contents of this document are true and correct'" (Maryland Office-S.O.S.) The questions asked to certify the person's desire and willingness to enter into the notarized transaction are framed on that basis. The notarial instrument may be an acknowledgment, in which the notary asks the individual: "Does this document constitute your own act and deed'" Or "Are you signing this document of your own free will'" Some notaries go so far as to draw an affidavit in which the person "deposes and says": That he is the affiant herein. That he is a resident of ' That he has read the affidavit and knows the contents thereof. That said affidavit is true to the best of his knowledge and belief, Only when no trace of doubt lingers in the notary's mind about the correctness and authenticity of the document and the identity and will of the signatory can he finally affix and sign the Testimonium Clause in the notarized instrument which says: "In witness thereof, I have hereunto set my hand and original seal'" The notarial seal itself - which contains the notary's name, the country where he is commissioned, and the words "Notary Public" - ensures the integrity and authenticity of the notarized document. (Attorney General of Hawaii) B. Why does the notary need to verify the identity, authenticity and will of the person that appears before him' When a person bearing a document requests for a notarial act, the notary cannot just take that person and the instrument at face value. He has to determine the authenticity of the document, the identity and will of the signing person under pain of administrative sanctions and even criminal charges. It is explicit in the laws governing notarial practice that a notarial commission may be revoked if the notary is remiss in his duty to identify a principal on the basis of personal knowledge or competent evidence of identity. Revocation of the license also awaits a notary who fails to require the presence of a principal at the time of the notarial act and executes a false or incomplete certificate. In the US and UK, the state attorney generals and the Court of Faculties, respectively, exercise administrative control over notaries. The city executive judges handle the function in other countries. The law says that a notary shall not perform the notarial act if: The signatory to the instrument or document is not present at the time of notarization. The signatory is not known to the notary, or has not been identified through valid evidence of identity. The notarial act of transaction is unlawful or immoral. In the judgment of the notary, the signatory is not acting on his own free will. The information contained in a certificate is false. The certificate is incomplete. (Supreme Court of the Philippines, 2004) In UK, the rules governing notaries are as stringent as those that apply to Solicitors. The notaries must comply with these rules relating to conduct and discipline, otherwise their practicing certificates will be revoked. The notaries in UK renew their license every year and they can only do so if they have faithfully complied with the rules during their one-year practice. In other countries, the renewal period is from two to four years. In most cases, the notary faces revocation of his license or administrative sanctions if he: Fails to keep a notarial register. Fails to make the proper entries in the register concerning his notarial acts. Fails to require the presence of a principal at the time of the notarial act. Executes a false or incomplete certificate. In his job, the notary is entrusted with the responsibility of protecting against errors, omissions and adulterations. He needs to exercise care because clients, third parties and government rely on such acts to be true and correct. (Nicholas Cook Notary Public, 2005) Since the notarial seal symbolizes and ensures the integrity and authenticity of a notarized document, all notaries are required by law to have an engraved seal of office or a rubber-stamp facsimile seal, which seal shall be impressed upon all his official acts, attestations, certificates and instruments to authenticate them. (Attorney General of Hawaii) If the notary falls short of his sworn duties to go about his job with integrity, diligence and skill, it is not only he who will suffer from the consequences but other people and institutions. As a sworn public official, the notary serves an important role in the prevention of fraud and protection of the parties involved by acting as an official, unbiased witness for certain documents. (Maryland Office S.O.S.) In the event the notary is found to have "willfully and knowingly" breached his duties, resulting in damages to any party involved, the criminal liabilities he may incur include perjury, forgery and subordination or influencing another to commit perjury. (AG-Hawaii). For this reason, each notary is required by law to keep a record book listing all acts, protests, depositions, etc. done by him in his official capacity. To be recorded in this book are the type and nature of the document, date, time of day, the parties to the instrument. All the notary's official acts, attestations, certificates and instruments shall be authenticated by impressing his seal thereon. Without this seal, the notarization is invalid and there is no notarization. (Attorney General of Hawaii) As if to emphasize the seriousness of a notary's job, the law provides that persons who show disrespect at the legal institution represented by the notaries are subject to criminal prosecution. Such an offense may include impersonating a notary, influencing a notary to commit an official misconduct or obtaining, defacing or destroying the seal, notarial register or official records of a notary. II. Assignment 2 - Draft Letter The duties and responsibilities of a notary extend beyond his office and the person he directly renders service to. These could have repercussions on all those affected by his notarial acts. A high degree of integrity, diligence and skill are thus expected of him. The primary functions of a notary are: Administer oaths and declarations. Attest the signatures and execution of documents. Authenticate the execution and content of documents. Present bills of exchange. Attend drawing of bonds. Draw mercantile documents, deeds and wills. Verify translations from foreign language to English or vice versa. Taking evidence, powers of attorney, corporate records and contracts. By law, notaries are not allowed to prepare legal documents, including notarial certificates. Their job is only to complete a notarial certificate which has been legally prepared by attorneys. Before checking the veracity or authenticity of a document, a notary must read the notarial certificate to know whether he is serving as an official witness, administering an oath, or taking an acknowledgment (Maryland). Then he can act accordingly. As sworn public officials, notaries play an important role in the prevention of fraud and protection of parties involved by acting as an official, unbiased witness for public documents. A notary should never witness a document unless absolutely satisfied that whatever he is certifying or attesting is true and correct. (AG Hawaii) His powers and duties are exclusive and personal to him. Thus, under no circumstances can he delegate these to anyone. He cannot engage in any activity that could be construed as law practice. If he so much as assist someone in preparing legal papers such as contracts, deeds, powers of attorney, wills or bills of sales, these may constitute unauthorized practice of law. A notary may be asked to perform other services by his employer, but the notary is essentially a public officer and is required to provide notarial services to the general public. But a notary may refuse to do a notarial act if he knows or has good reason to believe that said act or transaction is unlawful or immoral, in his judgment the signatory is not acting of his own free will, and the signatory shows that he does not know the consequences of the transaction requiring the notarial act. As a rule, notaries should never notarize a document written in a foreign language, unless he has thorough understanding of that language. He should not also notarize if the parties who appear before him speak a foreign language unfamiliar to him. In matters of fees, notaries in private practice may charge fees but public notaries employed by government agencies cannot. References: Attorney General of Hawaii. "Notary Public Manual." State of Hawaii, Revised 1986. Maryland Office of the Secretary of State. "Duties and Responsibilities of a Notary Public." http://www.sos.state.md.us/Notary/Duties.htm Nicholas Cook Notary Public. "Notarial Services." Essex, UK; 2005. http://www.notarypublic.co.uk/main/ Services.asp The Notaries Society. "More about Notaries." UK. http://www.thenotariessociety.org.uk/more_notaries.asp. Supreme Court of the Philippines. "Rules on Notarial Practice of 2004." http://www.supremecourt.gov.ph/rulesofcourt/2004 Read More