PROBLEM NOTARIZATIONS

This section discusses legal issues, but is NOT offered as legal advice. Anyone needing legal counsel should consult a lawyer.

Please visit Contact Info for Notary Public Divisions page for the contact information for all fifty states' notary divisions, which may help with legal questions.

The purpose of this section is not to get into nitty gritty points of notary law, but to focus on practical aspects of notary law that affect us in practical every day situations. This is more of a "How to handle various situations" section. This section is based on California notary law which may differ from notary law in other states.

1. What do you do when you have a client who wants an acknowledged signature but doesn't have identification?Two credible witnesses are necessary. The name, phone number, driver's license number and expiration date of each witness must be recorded in your journal. In addition, each witness must swear under oath to the identity of the signer and, importantly, must sign your journal. In addition, a right thumbprint should be taken of the signer.

2. What do you do when the client wants an acknowledged signature and has identification, but, the name on the identification is different from the name on the document?

a. If the name on the identification includes the name on the document and more, then you may use the identification. Example. The ID says John Abe Frank Smith, but, the document says, John Smith. You may notarize John as John Smith.

b. Can you notarize John as John A Smith? If his ID says John Abe Frank Smith, then yes.

c. What if the ID says John Smith and the Document says John A Smith? In that case you must use two credible witnesses and use the procedure in #1. It is good to be thorough, you could record his ID in addition to the credible witnesses with notes about the name variation. More information is better than less.

3. How well do you have to know somebody to say that person is 'personally known' to you? Don't interpret this too liberally. According to the California Secretary of State, 'personally know' means having an acquaintance, derived from association with the individual in relation to other people and based upon a chain of circumstances surrounding the individual, which establishes the individual's identity with at least reasonable certainty. So, if you notarized someone once before, and they forgot their ID the second time, you may know them based on the previous experience, but you don't 'personally know' them according to the Secretary of State's interpretation. One practical way of looking at it is: in addition to using the "Official" definition, you could think in these terms. If I saw this person in court five years from now, would I be able to remember their name or anything about them?

4. What do you do when you are asked to notarize someone, perhaps in the hospital, who might not be fully cognizant, that is, not fully mentally 'there' and/or aware of what he/she will be doing by signing the document to be notarized ? This is a tricky one. Sometimes patients are given drugs to help them sleep, or at least not to be in pain. These drugs affect the patient's cognizance, already shaky from illness. It is a requirement that you be able to communicate with the signer. If they can not tell you in their own words a summarization of the document's meaning, you are taking a big risk in notarizing them. Nodding of heads and inarticulate noises are not the most reliable forms of communication. If you want to notarize the documents because you feel sorry for the signer's family, who may be huddled around the hospital bed, think of your risk of going to court if there is a complication. It was the family's negligence for not having the power of attorney or other document notarized while the signer was in better physical and/or mental condition, not yours. Signers in hospitals can not always remember later on what they signed. If there is a family feud later on, the notary could end up in court. There is a risk involved with notarizing people who aren't 'all there'. Be careful.

5. What do you do when the signer can only sign an X? It is legal to have a signer sign with an X if there are two signing witnesses. The signing witnesses must each sign your journal and you must record their ID information in your book as well as their phone numbers. Signing witness #1 must sign the signer's first name to the left of the signer's X in your journal. Signing witness #2 must sign the signer's last name to the right of the X, in your journal. If there is a middle name, either witness can sign it. The same must be done on the document. The signing witnesses' information and the fact that they are signing witnesses should appear on the document, otherwise you will invite confusion later on.

5a. What kind of problems are there signing by X? Many of the signers are so frail that they can not even hold a pen. Some of my clients think that they can put a pen in an elderly person's hand, and wrap their fingers around the old person's hand, and sign an X. I don't let them get away with that because the signer is not really signing. It is the person grabbing the signer's hand who is signing. The motion of the pen should be from the signer. If someone is using their hand to guide the signer's hand without providing movement, that would be acceptable. If you pity people and let them get away with helping someone sign (or helping them behind your back) you may not be abiding by notary law. The signer must really be doing the signing. If they can't, refer them to a lawyer and tell them that you can't help them.

5b. What can you do to help someone sign more effectively in a hospital bed? Most of my hospitalized clients don't understand that you need to sit up to sign documents. All the way up. They are concerned that it may not be comfortable for the patient to sit up. My opinion is, if your relative is not comfortable sitting up, then you should not have a notary come. I require that people get ship-shape for me. Signer's must sit up and have something hard to write on. If a hospital rolling tray table is not comfortable to write on (their height is adjustable), then a hard stable surface of some sort will do like a clipboard or pad of paper with a hard cardboard back. Schedule the appointment when the patient is not drugged, and when they are most awake. If you value your time, tell your clients ahead of time that you are going to charge for waiting time if they are not prepared.

6. Jail notary jobs. What do you do if a client asks you to do a jail notarization? Before you ask them anything else, ask if they possess the inmate's ID. If they can't produce ID, then ask them to bring two credible witnesses. Perhaps they could be a witness if they are not involved in the document. Often they say that the ID is being held by the jail and that they will get it at the jail when they see you. It's not that easy to get the ID from the jail officials. Sometimes written permission from the inmate is necessary to do that. The jail officials keep hours which differ from place to place. Sometimes, the client may think that the jail is holding the ID when they aren't. It is a foolish idea to book an appointment in a jail unless the client has the ID in hand. Remember, the inmate is not your client. It is the friend, lawyer, or relative of the inmate who is your client. Getting credible witnesses into the visiting room with you can be a hassle. The guards are not always cooperative about these things. Let the guards know that the two extra people are functioning solely as credible witnesses to the identity of the inmate and that they will not socialize at all. In fact, tell the guard that you will send them down the elevator the second they are done identifying, and that you will remain for several more minutes until the notarization is done.

7. Are wristbands a sufficient form of identification for inmates who have no other identification? No, you must not accept them as identification even if the guard says it is OK. The guard is not a notary and doesn't care about notary law.