1.
Why are documents notarized?
Documents are notarized to prevent fraud. Notarization, if done correctly, by a knowledgeable, prudent and honest Notary, will reasonably assure those relying on the document that:
the person who signed the document is the person referred to in the document;
the signer was aware of what it is they signed; and
the signer willingly signed the document (under no undue influence or pressure
from third parties).
2.Can a signature on anything be notarized?
For a document to be notarized, it must contain:
1) text committing the signer in some way,
2) an original signature (not a photocopy) of the document signer,
3) a Notarial "certificate" which may appear on the document itself or on an attachment.
The Notary fills in the certificate, signs it, then applies his or her seal to complete the notarization.
3.What is a Notarial Certificate?
When a Notary performs a notarial act, the Notary completes a Notarial Certificate, in which the notary indicates EXACTLY what the notary is certifying. For example, if the notarial certificate says that the Notary administered an oath or affirmation, then by signing that certificate the Notary is certifying that they actually did that. By putting the name of the person in the certificate, the Notary is certifying they have positively identified the person (through acceptable I.D.) to be that person.
In Hawaii, the penalty for a Notary who completes a false notarial certificate (didn't give an oath, didn't identify the signer, or the signer didn't appeare in front of them, etc.) is punishable by $1,000 fine and/or 1 year in jail. Notaries are public officials and attempting to solicit a Notary to falsely complete a notarial certificate may also carry serious penalties.
More examples and information can be found on the Certificates page.
4.What are the most common types of Notarial Acts Notaries are called on to perform?
The two most common types of Notarial Acts performed by Notaries are the Jurat and the Acknowledgment.
JURAT
The Hawaii Jurat Certificate reads:
"Subscribed and sworn to before me this ______ day of ________."
This type of Notarial Act is commonly associated with sworn statements (known in the legal system as an "affidavit"), or other documents where the agency relying on the information in the document is anxious that the person signing the document is given an oath, swearing them to the truth of the information in the document.
In addition to swearing (or affirming) to the truth of the information in the document they signed, the signer must sign the document IN FRONT OF THE NOTARY ("subscribed" means "signed"). So, if a document requires a Jurat, the signer must sign the document in front of the Notary and the Notary MUST give the signer an oath, swearing them to the truth of the information in the document.
A document that requires a Jurat MAY NOT be executed by an attorney-in-fact on behalf of another person because an oath is a matter of conscience and one person cannot take an oath on behalf of a second person.
ACKNOWLEDGMENT
There are several different types of acknowledgment certificates permitted by Hawaii law, depending on the "capacity" of the signer (individual, corporate officer, attorney-in-fact signing on behalf of a principal, a signature by mark, a signer identified by a credible witness, etc.).
The acknowledgment is different from the Jurat in a few ways. First of all, while acknowledgments may require an oath, the usual, individual acknowledgment does not require an an oath. An acknowledgment also does not require that the signer sign the document in front of the Notary. In fact, a signer could have signed a document years prior to appearing in front of the Notary.
The acknowledgment includes the following information:
The date the signer appeared in front of the Notary (Personal Appearance);
The manner in which the Notary has identified the signer (Positive Identification OR personal
knowledge) as the person (according to the name) who executed the document;
The fact that the signer acknowledged to the Notary that the signer had signed the document
as his free act and deed (Willingness and Awareness).
5.What if the document does not have a Notarial Certificate?
A Notarial Certificate is generally provided by the agency/person who requires your signature on a document. If a Notarial Certificate has not been provided with the document, the best course of action is to contact the agency/person who will receive the notarized document and ask them what type of Notarial Certificate they are requesting.
There is a tendency for some people to just tell you to just "have the document notarized" but an actual Notarial Certificate is not attached. In doing this, they fail to understand there are different types of notarial acts and it is the Notarial Certificate that tells the Notary precisely what type of Notarial Act is being requested. Those who make this request are operating under a commmon misconception that a Notary just "signs and stamps" the document.
A Notary Public MAY NOT make the determination for you of what type of Notarial Certificate should be on a particular document. If it is not possible to contact the originator of the document, then you, as the signer, can tell the Notary which type of Notarial Certificate you wish the Notary to execute for the document. A well-equipped, professional notary should carry different types of "loose" certificates and can show you the different types and explain the differences so you can make the decision. For the Notary Public to make the decision as to what type of Notarial Certificate is required is generally considered to be the unauthorized practice of law and result in severe penalties for a Notary Public.
6.Does notarizing a document make it "legal"?
Notarizing a document does not make it "legal" or "true," if the document is not legal or true on its own. As stated above, the reason documents are notarized is to prevent fraud and insure that the person who signed the document is who they say they are; that they signed the document in their authorized capacity, if applicable; and that they signed it as their free act and deed.
The Notary makes no representation with regard to the document being notarized, or the signer, other than as stated in the notarial certificate. Different states have different requirements for the certificates that may be completed by Notaries in that state. The laws of the state where the document is being notarized determine the exact language of the jurat or acknowledgement certificate the Notary may complete and it may be necessary for a Notary to use a loose certificate that contains the specific wording required by the state where the notarization takes place.
7.What if a Notary knows or suspects the document is part of a fraudulent transaction?
A Notary must not take part in a known fraudulent transaction. If the Notary has knowledge or even suspects that one or more of the parties to a document are engaging in a fraudulent activity, the Notary should refuse to notarize the document(s). Keep in mind, the purpose for notarization is to prevent fraud. If a Notary knowingly participated in a fraudulent transaction by notarizing that document, how would fraud be prevented?
Mortgage fraud is rampant and is facilitated by Notaries who have lost sight of the primary purpose for notarization: prevention of fraud. At least some of those who carried out the terrorist attacks of 9/11 were able to obtain identity documents, fraudlently, with the help of a dishonest Notary. Notaries are the LAST line of defense in being able to stop a fraudulent transaction, when many others have been willing to look the other way or even willingly participate, it is the responsibility of the Notary to do what they reasonably can to prevent a fraudulent transaction from taking place.
It isn't often difficult because dishonest people aren't very smart and they tend to freely discuss things that indicate they are taking part in a fraudulent transaction, such as financing a house that is a rental but representing to the Lender that it is their primary residence. This is mortgage fraud. As a Notary, if a borrower reveals this to me, I must not notarize the transaction and report the situation to the escrow company.
8.Are Notary laws the same in all states?
No, each state has their own laws that govern Notary Practice and conduct in their state. There are also certain standards in Notary Practice that have been developed over the years that guide prudent Notaries in areas of practice not covered by state law. Every Notary should be very familiar with their particular state's law.
9.Why can't a Notary just sign their names and put their stamp on my document?
Notaries cannot simply "sign and stamp" your document. A Notary's signature and seal must appear on a Notarial Certificate which is part of or attached to the document you sign. In the certificate Notary "certifies" certain things about the specific Notarial Act and the signer to be true.
10. What do I need to bring with me to have a document notarized?
You must, naturally, bring the document you wish notarized. You must bring the entire document, not just the signature and/or notary page. This is because the Notary must record certain information from the document and scan it to insure there are no blank lines or missing attachments.
Also, if the document is one that requires you to complete some or all of it, the document MUST BE COMPLETED before it can be notarized. It is not possible for you to acknowledge your awareness and willingness to sign the document if the document is not complete.
You must also bring your identification from which the Notary can positively identify you as the person identified in the document.
11. What if I do not have identification? Can I still have my signature notarized?
There are a couple of ways you can still have your signature notarized without identification. One is for you to know a Notary personally. This means that the Notary doesn't have to identify you from documents but knows you well enough, over a sufficient amount of time, that they are confident that you are the person described in the document you are being asked to sign.
The second way is for you to know someone personally who knows a Notary personally (called a "chain of personal knowledge"). In this case, the person who knows you personally must also appear before the Notary (who knows that person personally) with you and swear that you are the person you say you are and the Notary must complete a special notarial certificate to document the fact that you were identified in this way.
12. What if the signer has a physical disability that prevents them from signing the
document or the Notary Journal?
There are a couple of options offered to Hawaii residents in this situation. One of those options is for the person to sign by making a "mark" on the signature line. There is a special form of Notarial Certificate required for this type of notarization and the Notary should be advised at the time the notarization is requested that this is the situation. All of the four cornerstones of notarization: Personal Appearance, Positive Identification, Willingness and Awareness must still be verified by the Notary.
There may be situations where a person is physically disabled to the point that they are unable to even make a mark as a signature, even though mentally and verbally they are able to communicate their Awareness and Willingness to the Notary. In this case, there is a provision in Hawaii law whereby the individual's physician can write a statement to the effect that because of the person's physical condition they are unable to sign their name or make a mark. With that letter in the Notary's possession, the signer can verbally authorize the Notary to sign their name for them, which the Notary then does, and the original of the Physician's statement must accompany the document that is notarized.
13. What if the signer is unable to communicate with the Notary?
If the signer is unable to communicate with the Notary, whether through physical disability or language barrier, the Notary must not notarize because, without communication, the Notary will be unable to determine willingness and awareness, two of the four cornerstones of notarization and two of the specific requirements for a valid Notarial Certificate.
If a person is no longer able to communicate their desires either through speech or writing, then you need to seek legal counsel so appropriate caretakers can be appointed to accomplish any necessary legal matters on the person's behalf.
14. Can I sign a document for another person if I have a Power of Attorney?
Yes, a Notary may notarize a document signed by an Attorney-in-Fact (requires a special acknowledgement certificate). However, simply because the document is notarized does not mean it will be accepted by the person who will be receiving and relying on the document. If you must sign a document with a Power of Attorney you should confirm with the receiving agency/person that they will accept it if you sign that way.
NOTE: A prudent Notary would insist on seeing the original Power of Attorney and must be convinced that the Power of Attorney remains in full force at the time of the Notarial Act.
15. If I am signing with a Power of Attorney, do I just sign the other person's name?
No, there is a specific way in which you are required to sign when signing for another person in the capacity of attorney-in-fact;
Example: Principal is John Smith
Attorney-in-Fact is Mary Smith
To sign for John, Mary would sign:
John Smith by Mary Smith, his attorney-in-fact.
To initial for John, Mary would:
JS by MS his AIF
16. I have a document in a foreign language that needs to be notarized.
When a document is written in a foreign language, not only should the signer be able to read the document, the Notary should also be able to read the document and the signer and the Notary must be able to communicate in a common language.
If the document is in a foreign language, it is likely the Notarial Certificate would also be in a foreign language and if the Notary were not conversant in that language, it would not be possible for the Notary to complete the Notarial Certificate.
In addition, the Notary needs to perform all of the same steps of notarization as with any document and, if not conversant in the foreign language spoken by the signer, the Notary would be unable to determine two of the four cornerstones of notarization: Willingness and Awareness of the signer.
The Notary Office of the Attorney General's Office maintains a list of Notaries who speak foreign languages.
17. What if I need an English document signed and notarized by a person who does not speak English.
Here, again, you have the same challenges as with a document in a foreign language, unless the Notary also speaks the same language as the signer. If the Notary cannot communicate with the signer in a mutual language, the Notary cannot possibly determine Willingness and Awareness, which are two of the four cornerstones of notarization (Personal Appearance, Positive I.D., Willingness, Awareness), and the Notary cannot perform the notarization.
18. What is a Medallion or, so called, "super" Notary?
A Medallion notarization is a special type of signature guarantee that is issued by financial institutions. While the bank official that provides this service may be a Notary Public, the service is not one that is a regular notarial act that is done by a Notary Public.
