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FlaNotary
Florida
59 Posts |
 Posted - 08/14/2010 : 6:00:53 PM
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quote:
Originally posted by CHI.NSA
Would the notary still go on with it if not directed by the signer?
No. In order for the notary to sign on the signatory's behalf, he or she must direct the notary to do so.
Robert T. Koehler
Notary Public for the State of Florida
Commissioner of Deeds for the State of Florida in the Bahamas
Commissioner of Deeds for the State of New Hampshire
Certified Loan Signing Agent
AAWO Accredited Wedding Officiant
www.NotaryWeddings.com |
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n/a
Illinois
19 Posts |
Posted - 08/14/2010 : 5:43:29 PM
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"Actually, considering the restrictions, imo it is more secure having the signer direct the notary to sign."
I can see your point. But what about those cases in which the signer is not directing the notary to sign, due their disability? and/or has no POA...what would the notary do then if a family member requested it the services for a signing of a POA?
Would the notary still go on with it if not directed by the signer?
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PWinFL
Florida
469 Posts |
Posted - 08/14/2010 : 5:28:12 PM
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Signing for someone is no different than signing by a mark, or using "credible witnesses". Actually, considering the restrictions, imo it is more secure having the signer direct the notary to sign. All notarial procedures and rules apply, e.g., proper ID, understands the purpose and content of the document, takes the oath, if required, etc. On top of that, two persons with no interest in the transaction must witness the signing of the document and the notarization and that their names and addresses be clearly printed below their signatures. Unless otherwise required by law for the particular document, it is not necessary for the witnesses’ signatures to be notarized. And the Governor's manual also suggests that the witnesses sign your journal and make appropriate notes.
Further, as Robert pointed out, very specific wording must be used not only in the notarial certificate, but also on the signature line. Where the signer's name is usually typed or printed, the following statement must also be present:
SIGNATURE AFFIXED BY NOTARY, PURSUANT TO §117.05(14), FLORIDA STATUTES.
I don't think this situation would arise too often in a closing situation. However, consider nursing home and hospice care patients, especially were strokes are involved. I usually try to have the signer sign by a mark (which also requires special considerations and procedure) rather than having someone sign by direction.
Never drive any faster than your guardian angel can fly.
I am not an attorney licensed to practice law in the State of Florida,
and I may not give legal advice or accept fees for legal advice.
Visit us online at http://www.PAWnotary.com |
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n/a
Illinois
19 Posts |
Posted - 08/14/2010 : 12:55:14 PM
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| Agree with you Linda on having a POA or at least have adult guardianship... |
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n/a
Illinois
19 Posts |
Posted - 08/14/2010 : 12:54:02 PM
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Yes, but one doesn't have to be 'uneducated' to be tempted to do ill will....white collar crimes are done by some of the most educated people around...
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FlaNotary
Florida
59 Posts |
Posted - 08/14/2010 : 12:23:22 PM
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If a Florida notary signs in behalf of a disabled person, two witnesses must sign and the notary must use certain language in the certificate.
Yes, we are high in mortgage fraud but it is not due to laws like this... It's due to uneducated notaries who don't take their commission seriously and have no problems bending the rules.
Robert T. Koehler
Notary Public for the State of Florida
Commissioner of Deeds for the State of Florida in the Bahamas
Commissioner of Deeds for the State of New Hampshire
Certified Loan Signing Agent
AAWO Accredited Wedding Officiant
www.NotaryWeddings.com |
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n/a
Illinois
19 Posts |
Posted - 08/14/2010 : 12:03:19 PM
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However, our laws allow the notary to sign the person's name if the person has a disability which prohibits him or her from making a mark.
Not that I'm knocking FL, love visiting the state, and this may be a bit off topic, but NOW I know at least one of the reasons why Florida was recently rated as having the highest mortgage fraud rate in the nation! That particular notary law is....wow!
Question for FL notaries: How would the notary know the signer had a 'disability' which would prohibit them from signing, other than the obvious physical appearance of the person? That is, does the signer need to show the notary some sort of medical proof or certification that they have a physical impairment and can not use their arms/limbs to sign? What if they were a quadriplegic, and couldn't use their mouth? In other words, if the disability is not obvious to the notary, how would they know it was okay to sign for the signer? Are there any further FL laws or instructions on how the notary would proceed in that case?
Even if I were a FL notary, I still wouldn't sign their name...seems to unethical in my book. |
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FlaNotary
Florida
59 Posts |
Posted - 08/14/2010 : 08:30:29 AM
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They can draw a mark with the pen in their mouth for all I care... as long as they are controlling the pen and are able to make a mark - whether it's an "X", a circle, a squiggly line, whatever - it counts as a mark in my book. I would be hesitant to accept a fingerprint for a mark, because it isn't specifically addressed in Florida law.
However, our laws allow the notary to sign the person's name if the person has a disability which prohibits him or her from making a mark. If the person truly could not make a mark, I would use that procedure.
Robert T. Koehler
Notary Public for the State of Florida
Commissioner of Deeds for the State of Florida in the Bahamas
Commissioner of Deeds for the State of New Hampshire
Certified Loan Signing Agent
AAWO Accredited Wedding Officiant
www.NotaryWeddings.com |
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Lisa T.
California
391 Posts |
Posted - 04/25/2010 : 11:44:16 AM
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Actually, CA's code does define what a mark is and gives an example (visual) of a document executed by signature by mark (pgs 14 - 15 of the handbook).
Handbook says: "The signer's mark must be witnessed by two persons who must subscribe their own names as witnesses to the document. One witness should write the person's name next to the person's mark and then the witness should sign his or her name as a witness."
Though the handbook doesn't say the words "the person must write an X", it implies it by the statement above along with the visual example. Thus I submit to you that a thumbprint - in CA - is not a mark, an X is the mark. |
Edited by - Lisa T. on 04/25/2010 11:44:32 AM |
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PWinFL
Florida
469 Posts |
Posted - 04/25/2010 : 03:21:00 AM
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IMPO, I submit that any mark, including a fingerprint or thumbprint, would qualify as a mark. The CA Code, like the FL statute, does not define what a "mark" is, other than it must be made by the principal and witnessed by two witnesses.
Never drive any faster than your guardian angel can fly.
I am not an attorney licensed to practice law in the State of Florida,
and I may not give legal advice or accept fees for legal advice.
Visit us online at http://www.PAWnotary.com |
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Lisa T.
California
391 Posts |
Posted - 04/24/2010 : 7:20:16 PM
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I've had that same request: hospital patient paralyzed, will just the fingerprint do? I said NO....patient has to at least make an X, which CA allows for a signature by mark, to be witnessed by 2 third party persons, and patient must have valid ID. Patient must make an X in mythe notary's journal. A thumbprint is required for POAs which are usually the document in question.
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edelske
New York
815 Posts |
Posted - 04/24/2010 : 10:06:37 AM
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Linda,
The closest NY law is:
§304. Proof by subscribing witness.
When the execution of a conveyance is proved by a subscribing witness, such witness must state his own place of residence, and if his place of residence is in a city, the street and street number, if any thereof, and that he knew the person described in and who executed the conveyance. The proof must not be taken unless the officer is personally acquainted with such witness, or has satisfactory evidence that he is the same person, who was a subscribing witness to the conveyance.
Bold added by me - which makes this function useless in most situations. Sometimes helpful if the affiant has NO ID.
As to "Signature by Direction" - no mention. The laws clearly mandate the action be by the affiant without proxy.
POA would be kinda difficult solution, for the disabled person, as it "locks down" to a specific agent. NY law does not say "how" affiant signs, only that proper notary procedures (the usual) must be observed.
found at:
http://dos.state.ny.us/lcns/lawbooks/notary.html
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
Edited by - edelske on 04/24/2010 11:58:59 AM |
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LindaH
Florida
1754 Posts |
Posted - 04/24/2010 : 09:47:28 AM
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Ken..
Do your statutes provide for a signature by direction? Where the signer would direct another to sign a document on his behalf in his presence?
This is interesting - I'm not sure we can accept a thumbprint as a signature here in FL - will have to do some research on it. I do believe that a person with a disability can have a rubber stamp of his signature here and that is his approved signature, therefore acceptable for us. I, personally, am not comfortable with it and would think someone in that type of disabled situation would have a POA in place to handle document signings.
MHO
Linda
www.notarydepot.com/notary/lindah
http://www.notary.net/websites/LindaHubbell
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edelske
New York
815 Posts |
Posted - 04/24/2010 : 05:43:13 AM
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I received a call for a notarization. The caller stated that the hands of the person to sign were pralyzed. "Can they sign the document by using a fingerprint", they asked. Not being sure, I declined the assignment. Later, I was at the New York County Clerk's office and asked the same question. "If that's the only way they can sign - if it's the best they can do; the answer is yes", said the County Clerk. They added that it's MY option how the signature is done. Most any way will do, if it is "the best they can do". Other options would be holding the pen in the mouth, or toes! But, it still has to be the sole action, no "assist", of the affiant. That was a suprise to me. I wonder how the recipient of the document would view a fingerprint signature. But, my wise wife recalls doing some notarizations for illerate people who use an "X" - and that is accepted without question. So, in the future, a fingerprint for a signature is OK with me - assuming ID and understanding, etc. are in place. I was also reminded that it must be an "original" action, use of a "signature rubber stamp" is never acceptable.
Kenneth A Edelstein
Mobile Notary, Apostille / Legalization Processing & Fingerprinting
http://www.kenneth-a-edelstein.com |
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Using a Fingerprint for a Signature
