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What Would You Do Answers: The Case Of The Absent Signer

WWYD Answers Case of the Absent Signer

Last week we asked our Notary community to weigh in on a scenario in which a client comes to you to get his boss’ signature on an affidavit notarized. Only the boss is out of the country and the document needs to be notarized before the boss returns. Your client explains that he witnessed his boss sign the affidavit.

Is there a way that you could perform the notarization while following the laws and rules of your state?

What You Said
 

“Sorry to have to disappoint the client, but the law is clear: In order to notarize the boss' document, the boss must personally appear before the notary,” wrote Johanna Bermann.

“This is one that demonstrates that, as a Notary Public, we must remain diligent in our efforts to do what's right each time,” noted Verne Gordon. “There can be no notarization of the document without the 'boss' being present. I'd need to be firm, but polite in stating that to the client and even suggest a possible discount on the notarization when the boss returns as a gesture of good will.”

Other Notaries saw a workable option.

“I would do a proof of execution by a subscribing witness, provided it was not for an excluded act,” said Linda Millstone.

Nina Torres concurred: “Under the right conditions, it would be possible to perform the notarization. (I am assuming that there is no oath for the signer required here, since this was not specified in the scenario.) The client would act as a subscribing witness and swear that he witnessed his boss sign the document.” However, Torres noted that her state, California, has a number of specific requirements for performing this type of act. One requirement is that the client be identified by a credible witness personally known by the Notary. The credible witness would present an ID card allowed by the state.

NNA Recommendations
 

At first blush, a proof of execution by a subscribing witness would seem to be an acceptable option in the states that permit it. However, the document is an affidavit, which is defined by Merriam-Webster’s Online Dictionary as “a sworn written statement made especially under oath or affirmation.” The laws of states that allow Notaries to perform proofs usually will indicate that proofs are intended to replace an acknowledgment. For example, the certificate wording for a proof will usually state the witness for the proof was present and watched the signer execute or acknowledge executing the document.

If the document required an acknowledgment, you potentially could perform a proof. But not all states permit it. Florida, for example does not. California, Texas and Pennsylvania do.

Make sure you check your state’s rules and adhere to all requirements. In Pennsylvania, for example, a subscribing witness must be an attorney licensed in the state. In Texas, the Notary must personally know the subscribing witness or be identified by someone the Notary knows personally.

 

Additional Resources:

Tips & Tutorials

 

5 Comments

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Leslie Somogyi

14 Apr 2017

Hello, I have an important question, please help... I need 2 witnesses to put their names for Power of Attorney, (for personal care and for property). My mother signed both copies, ok? Now my question is: who can be an acceptable person (persons) as witnesses? Please reply back, asap! Thank you very much!

National Notary Association

17 Apr 2017

Hello. Requirements for powers of attorney can vary depending on state law and the type of power of attorney. You would need to contact a qualified attorney for instructions regarding any witness requirements.

Paul Crownover

19 Apr 2017

In this publication, it is indicated what is acceptable state-by-state. However, it should be noted and emphasized that Proof of Execution is also something that is state-by-state. Some states may accept these, but per the Secretary of State for North Dakota is it not acceptable and for all notarial sigining the person(s) MUST be present at the time of the notarization and must sign in front of the notarization. While, as said before, requirements can vary from state-to-state, they can also change quickly with out publication by the state so before any notarization of this kind occurs, it should be verified by the state's office which issued the commission! By not doing so not only will make the signature and document invalid but puts the Notary open for criminal and civil prosecution.

Paul Crownover

19 Apr 2017

The NNA comment above suggests that the Notary should consult a qualified attorney. However, the more secure route is to contact the state agency (such as Secretary of State for their state) that has issued the commission. They will have the most up-to-date Notary requirements for their state (not to mention that guidance of notaries is provided for free) which an attorney may not have and they will certainly charge a fee.

National Notary Association

19 Apr 2017

Hello. The person above was asking about the qualifications for witnesses to a power of attorney, not requirements to notarize a signature on the document. A state Notary regulating agency would not be able to provide legal advice regarding the requirements to prepare and complete a power of attorney.

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