Over the last few years, I've noticed that the mistakes notaries make or the violations they commit fall into four areas. What is disturbing is that these four types of violations reflect an understanding of the main function of a notary public. Perhaps by sharing them with you, you will better understand your duties and avoid these troublesome and often costly errors.
Mistake Number 1:
Not Understanding Their Role.
Notaries often sell themselves short by not understanding the authority and power vested in them by the State. They tend to think of themselves as “just witnesses” to signatures. While witnessing signatures is an important function, it is not the primary purpose of a notary. A notary public is an officer appointed and commissioned by the governor and authorized to administer oaths, to take acknowledgments, and to perform other duties specified by law. The emphasis here is that the notary is a public officer who is empowered to perform official acts for the State of
Florida
. Only a few other persons have notarial powers; most notable are judges and clerks of the court. By performing their essential functions, notaries prevent and deter fraud. Unfortunately, because many notaries misunderstand their role, they often fail to properly perform their duties.
Mistake Number 2:
Not Understanding the difference between oaths and acknowledgments.
When a person must make a sworn statement, either verbally or in writing, he usually seeks out a notary public. Basically, the notary is responsible for satisfactorily identifying the person and administering a verbal oath to the person. If the sworn statement is in the form of a written instrument, the notary will also witness that person’s signature and make a written record of the event in a notarial certificate. Notaries, as a result of ignorance rather than negligence, often skip the essential act of administering the oath, resulting sometimes in the document being declared invalid by the court or rejected by the receiving party.
Some documents do not require the signer to swear to the truthfulness of the contents of the document. Instead, the signer must acknowledge to an authorized person that he understands the document and is signing or has signed the document voluntarily. Again, that “authorized person” is a notary public, an officer empowered by the State to take acknowledgments. The notary is responsible for properly identifying the signer, evaluating the signer for competency and willingness, and completing a notarial certificate with the required information. In the case of an acknowledgment, the notary may or may not actually witness the signing of the document; however, the signer must always be personally present at the time the notary completes the notarization.
Mistake Number 3:
Violating the presence requirement.
One of the main ways that a notary prevents fraud in written transactions is to require that the document signer personally appear before the notary at the time of the notarization. In fact,
Florida
law prohibits a notary from notarizing a signature if the signer is not present. If the person does not appear before the notary, how can the notary identify the person and be sure that the signatures is not a forgery? If the signer is not present, how can the notary administer an oath to him or take his acknowledgment? Violating the personal presence requirements may result in a monetary loss for the victim, leading to a lawsuit against the notary or a claim against the notary’s bond. Additionally, the notary may face criminal charges, a $5,000 fine, or the loss of the notary commission. Notaries are often led astray of the law when asked to do a special favor for a relative, friend, or boss. Remember, there is no exception to the presence requirement for every notarization, and the results of violating this requirement can be devastating!
Mistake Number 4:
Not completing a notarial certificate.
Florida
law requires that the notary make a written record of the notarial act in a certificate or statement containing certain information. It is never permissible for the notary to just sign a document and affix the notary seal, in fact, that is a meaningless act and is an improper use of the notary seal.
The law specifies certain information to be included in the certificate:
*the location of the notarization (venue);
*the notarial act performed (oath or acknowledgment);
*that the person personally appeared before the notary:
*the date of the notarial act;
*the name of the person whose signature is being notarized;
*the type of identification; and
*the notary’s signature, printed name, and seal
If the document does not have a notarial certificate, the notary may type or write a certificate on the document at the signer’s direction. Be very sure that you do not advise the signer regarding the type of notarial act required. This may be considered “practicing law without a license” which could result in sever penalties against the notary. Simply explain the difference between an oath and an acknowledgment, and let your customer decide what type of act is needed.
If the notarial certificate does not contain all the required information, the notary should write in the correct information. You will want to make sure that your notarial certificate is accurate and complete for every notarization.
Now that you know what the four most common mistakes of notaries are, you can avoid them and the negative results that follow. You should take pride in your position as a notary public, and serve the public with confidence. If you need additional assistance in understanding your duties, please contact my office at 1-800-422-1555.
