No matter how detailed your state’s laws are, eventually, Notaries will encounter situations where the law is silent and provides no guidance. What do you do then? You follow the “Standard of Care” — in other words, time-tested practices to ensure you perform your duties in an honest and ethical manner.
Three experts — Michael Closen, Professor of Law Emeritus at the John Marshall Law School; Kathleen Butler, Executive Director of the American Society of Notaries; and Ozie Stallworth, Director of Electronic Notarization and Notary Enforcement for the North Carolina Department of the Secretary of State — share their thoughts about what these standards are, how Notaries can learn about them, and how they help and protect Notaries.
Ambiguous situations
No matter where they work, Notaries can encounter a surprising variety of requests. Customers come to Notaries with requests to notarize school forms for children, real estate documents, powers of attorney, car title transfers and much more. Notaries may be asked to perform services not only for customers but for friends and family members as well. It’s small wonder that many Notaries eventually run into situations where state law gives them no instructions.
For example, Notaries in California are not permitted to notarize documents that give them a direct financial or beneficial interest beyond their Notary fee. But, what if the Notary’s husband asks her to notarize a document that grants him a large sum of money? California doesn’t prohibit notarizing for a family member, and the money isn’t going to the Notary. Is there a conflict of interest because the Notary is married to the signer? In this case, the California Notary would have to rely on recommended professional standards of care instead of clearly defined rules in statute.
What is a “Standard Of Care” for Notaries?
What exactly is a standard of care, and how does it apply to situations like this? Essentially, it means taking extra steps to ensure you act ethically and professionally when notarizing, even if your state law doesn’t specifically tell you to.
“Given the high responsibility of the duties Notaries Public perform, what is prudent and reasonable for them?” Butler asked. “To maintain their commissions and perform official acts in strict compliance with applicable laws and rules; to behave ethically in all matters; to follow professional best practices; to use commonsense judgment; and to know the boundaries of their notarial authority.”
Finding guidance outside of state law can help you determine the best ethical choice. One resource is The Notary Public Code of Professional Responsibility, an ethical code created by the NNA with input from Notary and legal experts to help guide Notaries when state laws aren’t clear. While the recommendations in the Code aren’t mandatory, they are designed to help Notaries make informed and ethical choices in ambiguous situations.
In the situation of the California Notary and her husband above, the Code advises against notarizing for a close relative because, even if state law allows it, someone might see the Notary’s relationship to the signer as a sign of possible bias and challenge the notarization in court. The woman tells her husband to find a different Notary to ensure that there is no appearance of impropriety — in other words, she has chosen to adhere to the best standard of care.
Practice standards of care
Closen, one of the nation’s leading experts on Notary law, said that when statutes don’t clearly address a legal dispute involving a notarization, courts will often look to see how the Notary chose to perform his or her duties in the absence of clear instructions. If the Notary is shown to have made a reasonable effort to act ethically and follow best practices, the court is more likely to look favorably on the Notary’s conduct.
“Best practices have to be time-tested, and more importantly they have to be a method that people of integrity and diligence would follow,” he said.
The experts offered examples of sound Notary practices:
Always use a seal. Not all states require Notaries to use a seal or stamp. However, it’s common for notarized documents without seals to be questioned or even rejected when sent to another state or country. Closen said that no state forbids the use of a seal and many that don’t require it still have recommended guidelines for its use. It is a good standard of professional conduct for Notaries in states that don’t require seals to still use them for every notarization.
“In many jurisdictions, the presence of a seal is seen as evidence that the Notary had authority to act and acted in compliance with the law,” Closen said. “If you send a notarized U.S. document without a seal to a foreign country, you might as well not have bothered sending it in the first place. If they don’t get a seal, it will bounce back.”
Always keep a Notary journal. While many U.S. states do not require their Notaries to keep journal records, Stallworth said that making a careful record of your notarizations is one of the best sources of evidence that you acted professionally if you are ever questioned or sued over a notarization in a court case. “Journals can help establish a verifiable pattern of professional conduct for Notaries,” he said. “Being able to demonstrate a consistent, professional and methodical manner in which a Notary consistently performs notarizations will add credibility if a notarial act is ever called into question.”
Where to go for guidance?
If the laws of your state don’t cover a situation you run into, where can you turn for help? Here are a few suggestions:
State Notary-regulating agencies: Even if state law doesn’t provide you with instructions, you may be able to get help by calling your state’s Notary-regulating office. Many states also publish complimentary handbooks or manuals for Notaries that cover statutory requirements and sometimes offer recommendations for situations not spelled out in the law.
Professional Associations: Professional associations for Notaries such as the National Notary Association and the American Society of Notaries provide assistance, information and publications on state Notary laws and recommended ethical practices to members. These associations can help point you in the right direction if you run into a situation where you’re unsure how to proceed.
RULONA: The Revised Uniform Law on Notarial Acts (RULONA) has not only been adopted as law by many states, but also provides guidelines and recommendations for many unusual notarial situations that aren’t always covered by formal rules in every jurisdiction.
David Thun is the Editorial Manager at the National Notary Association.
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