Keeping in mind that the primary purpose of notarization is to prevent fraud,
The cornerstones of notarization are:
MAJOR MISCONCEPTION ABOUT NOTARIZATION:
Notarization is no big deal. A Notary Public only watches you sign the document and then stamps the document and signs their name.
THE REST OF THE STORY...
When asked to notarize a document, a knowledgeable, prudent
STEP 1. Insist that the signer appears before them, in person, and will confirm that the signer is able to communicate with them in a language they are fluent in, so that Steps 2 - 7, below, may be accomplished.
STEP 2. Require that the signer provide current (unexpired) positive identification (as required by Hawaii law -- this is not simply any piece of identification).
STEP 3. Carefully compare the picture on the I.D. with the person appearing before the Notary and carefully examine the identification presented for signs of alteration.
STEP 4. Examine the document presented to insure there are no blank lines or interlineations that must be initialed by the signer and that all pages are included. The Notary will also insure that if the documents refers to any attached exhibits or other attached documents that those documents are, in fact, attached, and will not notarize an incomplete document.
STEP 5. Enter the required information from the document and the signer's I.D. into the Journal of Notarial Acts and ask the signer to sign the Journal.
STEP 6.Carefully compare the signatures on the document, on the I.D. and in the Journal. All three signatures must be substantially the same or the Notary should not notarize.
STEP 7. During the course of accomplishing all of the foregoing steps, and in the process of communicating with the signer, the Notary will determine whether or not the signer is appears to be aware of the effect and importance of the document they are signing and whether they are signing the document of their own free act and deed (wording directly from the Acknowledgement Certificate).
If in doubt, the Notary may engage the signer in further conversation to determine the degree of awareness and willingness. If the Notary continues to be in doubt as to either the signer's identity, awareness or willingness, then the Notary must not notarize the document. In addition, a Notary must not participate in notarizing documents in what the Notary knows to be a fraudulent transaction. The ULTIMATE responsibility for properly notarizing a document falls on the Notary and the Notary alone. It is the Notary's commission that is at stake and the Notary is personally liable for if he/she fails to act in an honest and prudent manner.
All of the above steps must be accomplished in order for a Notary to legally complete a Notarial Acknowledgment Certificate that reads (wording for certificate specified by state law):
On this _____ day of ____________________, 20__, before me personally appeared (personal appearance) <THE NAME OF THE PERSON
SIGNING THE DOCUMENT>, to me known/personally known (positively identified
OR personally known over an extended period of time) to be
the person(s) who executed the foregoing instrument, and acknowledged
(communicated with me in my language and to my satisfaction) that he/she/they
executed the same as his/her/their free act and deed (aware of the contents and
importance of the transaction and are signing it willingly -- under no
undue duress or pressure from another person).
All four of the cornerstones of notarization (Personal Appearance, Positive Identification, Awareness, Willingness) are addressed in the Acknowledgement Certificate and the Notary, by signing the certificate and affixing his/her official stamp, is attesting to the fact that the Notary, by careful observation and interaction confirmed ALL four to be the true.
A notary who knowingly fails to accomplish ANY of the four steps is guilty of completing a fraudulent notarial certificate...an act that could result, at a minimum, in monetary penalties and/or loss of that notary's commission.
A notary is a public official and asking a public official to knowingly break the law may carry with it severe penalties civil and/or criminal penalties for the person that induces a notary to break the law.
Notary FAQ's
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.
Why can't a Notary just sign their names and put their stamp
on my document to make it legal?
Notaries cannot simply "sign and stamp" your document. A Notary's signature and seal must appear on a Notarial Certificate in which the Notary "certifies" certain things about the Notarial Act and the signer to be true.
Notarizing a document does not make it "legal" or "true" if the document is not legal or true on its own. Some documents are required to be notarized because those relying on the document want to know that a Notary has followed the steps that appear at the top of this page. Please also see "What is a Notary" to better understand why documents are notarized.
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.
You must also bring your identification from which the Notary can positively identify you as the person identified in the document.
What if my identification is not sufficient to positively identify
me (doesn't have my full name)? How can I get it
changed to show all of my names?
Unless you can be identified by personal knowledge or through a credible witness who knows you personally and also knows a Notary, personally, you only option will be to obtain an identification card that bears your full name. The main options for I.D. cards for civilians are:
Driver's License
State Identification Card
Passport
A duplicate driver's license, reflecting your entire name can be obtained the same day. In order to have a duplicate license reissued in you full name you must bring with you ___________________________________.
A Hawaii State I.D. is also acceptable for identification. Signing Hawaii recommends that you obtain a State I.D., IN ADDITION to your Driver's License, just so you have a backup-ID in the event one is temporarily lost. Check the Resources page of this website for
What if I do not have identification? Can I still
have my signature notarized?
No, unless you can be identified in any of the two other methods provided for in Hawaii law (a Notary who knows you personally, or a credible witness who personally knows the Notary and personally knows you).
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 notarization has certified. Go to the Certificates web page for more specific information on what is required in a Notarial Certifiate.
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 is the source of the document and ask them specifically what type of Notarial Certificate they are requesting. There is a tendency for some people to just tell you to "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.
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. The Notary 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.
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. 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.
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.
Can I sign a document for another person if I have a Power of Attorney?
Whether or not a document can be signed by an Attorney-in-Fact on behalf of another person is a decision that must be made by the creator of the document being notarized. If signature by an Attorney-in-Fact is acceptable to the person/entity receiving the document, then the Notary may notarize a document signed for another on the authority of a Power of Attorney.
However, a prudent Notary would insist on seeing the original Power of Attorney and being convinced that the Power of Attorney was still in full force and effect prior to notarizing. ,
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:
I have a document in a foreign language that needs to be notarized.
What do I need to do?
When a document is writen 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, could not 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.
What if I need an English document signed and notarized
by a person who does not speak English.
Here, again, you have the same difficulty 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.
I have a document that needs to be notarized and then sent
to a foreign country? What do I need to do?
What is a Medallion Notary?
Have a question you don't see answered here? Please don't hesitate to call 524-8040.
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