The single most effective way for Notaries to protect themselves from lawsuits and liability is to require personal appearance for every notarization. Whether the appearance is in person or through remote online notarization (RON) technology — when allowed by state law — the signer must always appear before the Notary. This article explains why personal appearance is essential, outlines the real-world legal consequences of ignoring it, and answers common questions about remote notarization.
The best way to protect yourself from being sued for performing a notarization is to require every signer to appear in person before you.
In fact, every state requires signers to personally appear before a Notary to thwart forgeries and fraud involving notarized documents.
Requiring a signer to be present allows you to properly identify the signer and complete all the other proper steps of a notarization. It also may deter individuals bent on committing crimes from carrying out their plans.
Legal consequences of notarizing without personal appearance
Most lawsuits against Notaries happen because they notarized the signature of someone who wasn’t present. Here are actual examples:
- Election consequences: A candidate was disqualified in a local election because the signature gatherers were not present before the Notary when their signatures were notarized on his nominating papers.
- Foreclosure abuses: Thousands of borrowers lost their homes when employees of mortgage servicers notarized affidavits supporting scores of foreclosures without the signers present.
- Elder exploitation: An elderly individual lost his life savings when a “caregiver” asked the individual to sign a power of attorney naming the caregiver as his agent and then had it notarized without the individual knowing it and being present before the Notary.
- Property fraud: An employee of a small business asked the owner, who was a Notary, to notarize a signature on a grant deed. The owner didn’t realize the employee had forged his parent’s signature, which enabled the employee to take out a large refinance loan on the property without his parents’ knowledge.
In these and other instances, the Notaries faced the legal consequences of failing to require the signer to appear personally.
Enforcing the personal appearance requirement for every notarization is the best way to protect yourself and minimize the risk of Notary liability. This also protects the public and the transaction.
Questions from Notaries about remote online notarizations
Some Notaries have asked if they are permitted to conduct remote online notarizations using online audiovisual communication technologies.
Most states have enacted permanent laws that authorize Notaries to perform remote online notarizations. With a remote notarization, the signer and Notary appear before each other using technology that allows them to simultaneously communicate with each other by sight and sound. Think of remote online notarization as a new way for signers to personally appear before a Notary. Since not all states have enacted these laws, Notaries in states that don’t authorize remote notarization must still require the signer to appear physically in person before the Notary.
Key Takeaways for Notaries
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Personal appearance — either in person or via authorized RON — is legally required for valid notarization.
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Most Notary liability cases stem from notarizing without the signer present.
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When in doubt, require the signer to appear in person or decline the notarization.
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Check your state’s current RON laws before performing any remote notarization.
Bill Anderson is Vice President of Government Affairs with the National Notary Association.
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