Notary Bulletin

Two 'Simple Practices' Can Minimize Risk Of Liability

By Andrew Whitfield

If youre not taking steps to protect yourself from liability, youre making a big mistake. The recent landmark court decision Vancura v. Katris set the standard for Notaries and regulators around the country by clearly asserting that merely following state law is not enough to avoid negligence. Because of the ruling, Notaries and their employers now can be held to a higher legal standard.

Some states have moved proactively to enact legislation to help Notaries limit their exposure to liability. In Colorado, Secretary of State Bernie Buescher won passage of legislation aimed at protecting Notaries and the public by requiring two crucial notarial functions: maintaining a journal of notarial acts and attending Notary training. While not required in all states, these two simple practices can significantly minimize a Notarys risks.

The journal requirement is the single most effective means of protecting a Notary from liability. In Colorado, the new law requires that every Notary public shall keep a journal of every notarial act...

There is an exception: the Notary does not have to record the details of a notarization in a journal if a copy of the notarized document is kept in the normal course of business by the Notarys employer. However, this exception is fraught with risk. The Notary remains responsible for notarial acts regardless of whether the document notarized is lost, misfiled or otherwise unobtainable. For example, if the Notary changes his or her place of employment and is later asked to produce the document for a former client by the secretary of states office or court order, the Notary will be responsible for obtaining the document, wherever it might be. Failure to produce the document may result in liability.

That is why every Notary, no matter what state youre in, should keep a complete record of every notarization. In Colorado, the Secretary of States office views a properly maintained Notary journal as affirmative proof that the notarization in question was performed correctly as required by the Colorado Notaries Public Act. Accordingly, in situations where a notarization is challenged and a well-kept Notary journal is presented, the Secretary of State gives it quite a bit of weight when deciding the matter.

The second best practice codified by the Colorado legislature is an education course mandated for all new Notaries, and, in some cases, Notaries seeking reappointment (this administrative regulation will go into effect January 1, 2010, in Colorado). Notary education is important for all Notaries because it provides them with the essential information required to meet the standards of competence. In Colorado, whether receiving the training course from the secretary of states office or an approved vendor like the National Notary Association, the law sets forth curriculum that must be taught to enable Notaries to become competent in three areas: the Colorado Notaries Public Act, the Model Notary Act and widely accepted best practices.

Gaining competence in these three areas not only surpasses the bar for minimal competence set by the court in Vancura v. Katris, but provides a Notary with the tools needed to minimize his or her exposure to liability.

Andrew Whitfield is the Deputy Director for the Licensing and Enforcement Division at the Colorado Secretary of States office where he administers the Colorado Notaries Public Act.

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Quiz: The Many Types Of Notarial Acts

Notaries perform many different duties for the public — and it’s easy to lose track of the different acts and what states they’re authorized in. Test your familiarity with common — and uncommon — notarial acts.

(A link to the correct answers is provided at the end of the quiz.)

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