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Who Decides What Notarial Act Is Needed?

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Is it correct that a Notary cannot decide what type of notarial act a document requires? The signer must know and inform the Notary what act is needed?
G.T., Guadalupe, Arizona

You are correct unless you are also an attorney. A nonattorney Notary should never decide what notarial act is needed; the signer always makes the decision. If you are not an attorney, you would be engaging in the unauthorized practice of law by deciding what notarial act to perform. If you were to provide incorrect advice, you could then be held liable for resulting damages. 

If a signer is ever unsure of which notarial act to perform, you may describe the difference between a jurat and acknowledgment and let the customer choose. Your signer may contact the agency receiving the document if she’s still unsure.

Hotline answers are based on the laws in the state where the question originated and may not reflect the laws of other states. If in doubt, always refer to your own state statutes. – The Editors

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10 Comments

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Gerry

06 Aug 2015

The notary might hold another position (other than attorney) that allows the notary to say which act to perform. For example the notary could be a justice of the peace or chairman of a municipal board.

Jean

13 Aug 2015

In our Register of Deeds office, we frequently get docs with the incorrect choice of notarial act. We typically accept whatever they submit, unless we are the Notary. Is this a problem? Should we be refusing to record same if they used the wrong one?

National Notary Association

14 Aug 2015

You’ll need to consult with counsel in your office to determine if the documents containing an incorrect choice of notarial act affect the recordability of the document. In most cases, Notaries perform the notarial acts specified on the document or requested by the signer. The Notary typically does not select which notarial act to perform.

Eva

15 Aug 2015

in CA, I would offer the simple solution of doing both. As long as each are treated as seperate line items and charges. Fore example" if you are not sure, I would suggest two sets. One for each."

Erica

08 Sep 2015

How does this apply to people who bring in documents that already have notarial language at the end? If it has the language of, say, an Acknowledgement written out, can you just lead with "Looks like you have an Acknowledgement, right?" or do you need to ask which they want anyway? Also, how does this apply within a business setting as an in-house notary? (ex: "My boss said you need an Acknowledgement notarized on this document...")

National Notary Association

09 Sep 2015

Hello. If a document contains pre-printed notarial certificate wording that clearly indicates what type of act is being requested, the Notary may use that certificate wording. However, if it is unclear what type of act is needed, a nonattorney Notary may not choose the notarial act on the signer's behalf, as this would be the unauthorized practice of law.

Ludwig Knoester

08 Sep 2015

In California, no where in the SOS Notary Public Handbook or in Government Code or Civil Code does it explicitly state that a Notary cannot decide what notarial act is needed (ack or Jurat) for the client. On page 6 of the California SOS Notary : Acts Constituting the Practice of Law it states " California notaries public are prohibited from performing any duties that may be construed as practice of law" This statement is vague, not specific, open to interpretation, ambiguous, loose, and full of loopholes. It further states that "Among the acts which constitute the practice of law are the preparation, drafting, or selection or determination of the kind of any legal document, or giving advice in relation to any legal documents or matters". To me, a loose leaf certificate acknowledgment or a loose leaf Jurat is not a legal document. If however the document already consist of the proper notarial wording, there is no issue. You use the jurat or acknowledgment within the document. If you have a different take on this, please share your thoughts. Thank you.

National Notary Association

09 Sep 2015

Hello. If a document contains pre-printed notarial certificate wording that clearly indicates what type of act is being requested, the Notary may use that certificate wording. However, if it is unclear what type of act is needed, a nonattorney Notary may not choose the notarial act on the signer's behalf, as this would be the unauthorized practice of law.

Roger Rill

11 Sep 2015

An Affidavit (by definition a sworn statement) shows first paragraph wording such as "Being duly sworn...", or "Upon oath...", clearly showing that the document originator intends for the signer to be sworn, and a jurat notarial act performed. But the document shows an incorrect acknowledgement certificate. The penalty in my state for not giving the oath/affirmation when required is loss of commission for three years. My feeling is that my notary responsibility is to perform the JURAT notarial act specifically called for by the document wording, and attach the appropriate "Sworn to and subscribed before me..." jurat certificate language. An acknowledgement certificate can't be used for a sworn statement because it doesn't show that an oath/affirmation was administered by the notary.

National Notary Association

14 Sep 2015

Hello. If there is uncertainty as to what type of notarial act is being requested, the Notary certainly may ask the signer to confirm what type of notarial act the signer wishes. However, nonattorney Notary should never decide what notarial certificate wording is required for a document on the signer's behalf without instructions from the signer or an appropriate authority, as this would be unauthorized practice of law.

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