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‘Gray Areas’ That Often Confound Notaries

business boss.jpgUpdated 7-24-18. Notaries sometimes encounter situations that seem suspicious or questionable but aren't clearly addressed in state law. In these situations, it may be hard to tell if you should perform the notarization or turn the request down. Here are several scenarios that fall into these gray areas, and some suggestions to help you. 

If You Suspect Fraud
 

There are occasions when something seems “off” about a notarization, even if the signer has satisfactory proof of identity and seems willing to sign. Your suspicions could be raised by something as simple as the document’s title, or the odd behavior of someone present for the notarization.

State laws and guidelines don't always provide specific guidance or procedures to evaluate whether a notarization is suspicious or not. But there are a few things to keep in mind to help you determine if something’s amiss:

1. If a signer’s mental state or demeanor raises concerns, engage the signer in a casual conversation. If the signer cannot coherently engage in conversation, you may decline to continue with the notarization. If your state laws do not specify otherwise, this should be sufficient to decide whether you can continue the notarization. 

Some states, however, require Notaries to refuse a notarization if the signer does not understand the nature of the transaction requiring a notarial act. For example, Florida law specifies that Notaries may not notarize a signature on a document if it appears that the person is mentally incapable of understanding the nature and effect of the document at the time of notarization (FS 117.107[5]). Florida Notaries are also prohibited from taking an acknowledgment from or administering an oath to a person if the Notary knows the person has been declared mentally incapacitated by a court of competent jurisdiction (FS 117.107[4]). Texas authorizes Notaries to refuse to proceed if the Notary has reasonable grounds to believe that the signer does not have the capacity to understand the contents of the document (1 TAC 87.30[d]). 

2. If you suspect a signer is being forced or coerced by a third party, ask the third party to wait outside the room while you speak to the signer alone. If the signer is still willing and appears to clearly understand the document’s purpose, you may proceed. If the signer is unwilling or seems confused or unclear about the purpose of the document being signed, stop the notarization immediately.

Employer Requests
 

Another tough situation many Notaries face is requests from employers that conflict with what your state allows. Some employers mistakenly assume that if they pay for your commission and tools, they may direct you to ignore your state's requirements. If your employer makes a request for you as a Notary Public, ask yourself the following questions:

1. Is the request legal in your state? If an employer asks you to do something clearly prohibited by state law — such as ignoring ID requirements, backdating a notarization or falsifying a journal record — your duty is to refuse. But there are other situations that aren’t addressed in every state’s statutes. For example, what if you are told to only notarize documents for customers but not noncustomers during business hours?

California allows employers who pay for a Notary’s commission and supplies to limit the Notary’s transactions to work-related notarizations during business hours — but only if the Notary agrees to do so.

Iowa prohibits a Notary’s employer from restricting Notary services based on whether the signer is a customer or noncustomer of the employer. If state Notary law doesn’t specify Notary-employee services, an employer does have a right to direct a Notary-employee during business hours.

Texas, Florida and Oklahoma allow employers to limit the notarizations employees perform at work. However, Arizona, HawaiiMassachusetts and New Mexico do not allow employers to restrict employees from notarizing for non-customers (except for Hawaii Notaries in government service).

2. Is the employer’s request taking place during business hours? Some employers have tried to prohibit Notaries from performing notarizations outside of business hours. While in most states an employer may dictate when a Notary-employee may perform notarizations while on the job, outside of business hours, a Notary may perform any lawful, reasonable notarization requested by a member of the public.

 

22 Comments

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Bart M. Aiello

24 Aug 2015

None

BJ Waters

24 Aug 2015

As far as "Employer Requests" under Item 2 above, is there law that governs that? My employer said I could not notarize for others outside of the office because I was only covered under the firm's malpractice insurance, etc. and because of that, they could tell me that I cannot notarize for others outside the office. Please tell me which California laws say otherwise. Thank you.

National Notary Association

24 Aug 2015

In California, Notaries may enter into an agreement with a private employer who has paid their commissioning fees and for their supplies, whereby the Notary’s services are limited “solely to transactions directly associated with the business purposes of the employer” (GC 8202.8).

Lawrence E. Shafer

24 Aug 2015

May an employer require a seal on site during non-business hours? That would restrict the notary's ability to do off hours notarizations.

National Notary Association

26 Aug 2015

Hello. In order to answer your question can you please tell us what state you are commissioned in? Different states have different requirements regarding storing a seal when not in use.

Janet Lee Butler

24 Aug 2015

Why doesn't the Notary simply buy a Surety Bond and Errors and Omissions Insurance as all Notaries not working for an employer do? That way he/she would be covered after work hours as well, and perhaps the employer would then know that he is not responsible for the notary's work after work hours. As far as I understand, the commission belongs to the Notary Public, even if the employer paid for it. Thus, the NP can notarized privately after work as they prefer. (speaking regarding California Notary Law).

James

24 Aug 2015

Good article. I've already had someone try to get something notarized with me and I got suspicious when it seemed like they had no idea what it was they wanted me to notarize for them. When I asked for ID her face looked slightly different than in her photo, although the hair was almost the same. I decided to ask her what her date of birth was (while I was looking at the ID) and she was very rude and said, "Um it's right there on my ID!" And I told her, "I'm asking YOU what your date of birth is not what your card says!" And she had a very confused look and grabbed the card out of my hand and stormed off with the document. I now suspect she stole that ID and tried to look like the person in the picture on it. If she hadn't stormed off I would have refused to notarize it for her anyway. Always make sure everything adds up.

catherine burns

26 Aug 2015

Could a Notary have two commissions? In the case where the employer has a contract “solely to transactions directly associated with the business purposes of the employer” (GC 8202.8), then they could use their own commission for private and the employer's @ work.

National Notary Association

26 Aug 2015

Hello. In California (where GC 8202.8 is part of state Notary laws), a Notary may only hold one Notary commission issued by the state. California does not issue separate "private" and "employee" Notary commissions.

Mister J

27 Aug 2015

In regard to Catherine Burns' question, the cited California code more fully says the employer "may limit, during the employee’s ordinary course of employment, the providing of notarial services by the employee solely to transactions directly associated with the business purposes of the employer." Does "during the employee’s ordinary course of employment" mean during business hours, or does it also apply when the employee is off the clock?

National Notary Association

28 Aug 2015

Hello. The statute says “during the employee’s ordinary course of employment.” This means when the Notary is on the clock at work. This may not be the same as “business hours” because it is possible an employer may not be “open” (that is, during 9-5 business hours etc.). The Notary’s employer may limit the Notary to notarizing only documents directly associated with the business purposes of the employer if the Notary and employer have entered into an agreement pursuant to GC 8202.7.

Lucia

28 Aug 2015

I'm a Notary in California. I notarized a Durable Power of Attorney in March 2015. A copy of that POA was sent to a company in the United Kingdom who asked for each page of the POA to be notarized as a true copy. I sent back a notarial form indicating it was a true copy but they are saying they want each page of the POA notarized as a true copy. Can I do that? I thought I could only put the stamp on notarial forms?

National Notary Association

01 Sep 2015

Hello. A CA Notary Public may not stamp with the official seal any pages other than the page with a completed notarial certificate (Secretary of State's Notary Newsletter, January 2013). If you need additional assistance, please contact our Hotline team at hotline@nationalnotary.org.

Annette

31 Aug 2015

I would recommend that the notary contact her Secretary of State. While the employer can dictate that she only notarize transactions directly associated with the business purposes of the employer while at work, I would question if they had any influence over what she could do after hours, on her own time, with her commission.

Vicki

08 Sep 2015

I recently declined to conduct a signing that involved the seller. The transaction was a cash sale of a property in Henderson, NV. The seller disclosed to me that the buyer was a relative. The sellers name throughout the documents was John Doe. The person in front of me was John Doe Jr. The signature line and the notary acknowledgement on the deed were drawn as John Doe aka John Doe Jr. There was no corrective language in the deed nor in any of the other documents regarding the variation of the name of record versus the name of the person signing as seller. The seller, the realtor and the escrow officer were all pushing me-they were extremely anxious to get the transaction signed right away. The signing company and the escrow company were new to me. My 30+ years of experience in mortgage lending, title examination and escrow management-along with that gut instinct we develop in a profession requiring high attention to detail- had me on high alert because from EVERY angle, the transaction looked suspicious. My stated reason to refuse the signing was based on the name on the ID versus the name on the document and in the notary acknowledgement. My question is this: Had there not been the name discrepancy or some other valid reason not to perform the notarization, can the Notary Signing Agent refuse the transaction?

National Notary Association

09 Sep 2015

Hello. As the Notary, in such a case you would have to make a judgment call whether there is sufficient indication that something is wrong that requires stopping the notarization. If you believe there is a clear indication something is wrong--for example, a signer appears coerced by a third party, or the signer appears unaware or confused, or there is an inconsistency in the ID, then it would be appropriate to halt the signing. If you choose to stop a notarization, you should make a note that you did so in your journal entry and record the reason why.

amy

09 Sep 2015

I am concerning becoming a notary but was wondering if you are doing it from your home how do your make your money?

National Notary Association

10 Sep 2015

Hello and thanks for reaching out! You may find the articles on building your Notary business and alternate income opportunities at the following links helpful: http://www.nationalnotary.org/notary-bulletin/blog/alternate-income-opportunities http://www.nationalnotary.org/notary-bulletin/blog/building-your-business

jebglbt@yahoo.com

30 Nov 2015

One time I had a woman show me her ID but she looked nothing like the picture on her ID. Instead of just blatantly saying that though, simply asked her for her address while I was looking at her card. Of course she said, "Why? It's right there on my driver's license?" so I explained to her I'm asking for verification and she couldn't do it, she grabbed the ID from me and stormed off. Saved me the trouble from telling her to leave myself. Always check the picture on the ID. Not just the name.

Denise

20 Aug 2016

I work in a school in Massachusetts. can I charge teachers for notarial acts?

National Notary Association

22 Aug 2016

Hello. Massachusetts Notary regulations don't address this specific issue. We would suggest contacting school officials to find out if your school has a policy in place regarding charging teachers or school employees for notarizations.

Angela anderson

30 Jul 2018

i note in the journal any reason I did not proceed with signing and reasons any signing looked suspicious. Be careful confronting signers.

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