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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.

Related Articles:

Protect Yourself: Require signers to personally appear

The 3 ways Notaries can properly identify signers

Additional Resources:

Tips & Tutorials

View All: Best Practices


Add your comment

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.

06 Nov 2017

I would have two witnesses hopefully his wife or another family member?

Mary Coca

06 Nov 2017

We are a Notary Professional to Notarize only, and do only what a Professional Notary can do


01 Apr 2019

NO NOTARY SIGNING AGENT should sign for a person who is not in front of them. Often, pre planning for such an event will allow for the signer to correctly complete a POA. I did a signing for a couple who wanted to sign for a ReFi but they were going to be out of the country, and they both sent their college age daughter with their POA's. She signed for both. I INSISTED that we do this signing at my husband's law office, where I could reprint. The package was 150 pages, and even with the long verbage she only made 3 errors. I think she won't want to sign for them again this way!

Karen L Lewis

29 Nov 2021

To clarify any actions if in question, my suggestion would be contact the Secretary of state or local authorities from a court house.


01 Jan 2022

My husband & I began to find very wrong, & definate times we knew nothing about documents being filed, & over some years & even now, we know & have some doc. proof fraudulent actions were involved & some had notaries, & a deed was even allowed to go ahead by a handwritten note about a “caregiver” stating they guaranteed the name of (example..) Betty J Smith (who was being given a part of a prop., w/ her husband, & this name was one in the same person, who was being shown in another capacity in the property..different last name…as Betty J. Jones…both woman’s names were actually mother & daughter, who ea. share equal ownership of property, along with Betty J. Smith’s husband & Betty J. Jones’ husband ( the father of Betty J. Smith…which, was never made known to the two parents, who were 2 of the 4 owners who happened to lay out all the initial costs during lending procedures, & want to know…years later of seeing this doc., who the heck is the “caregiver” to have such authority to have her statement do the fraudulent damage that was done & the battle over this prop. is still current & has destroyed people’s lives with the notarizing being accepted & filed, but never being fairly known to the two main financial contributers. How do the older/parent couple obtain a fair inquiry to this incident?

National Notary Association

03 Jan 2022

Hello. You would need to contact an attorney to discuss your possible legal options in this situation.

Jennifer Cates

18 Nov 2022

What if u have a document for a child that needs to be signed by both parents. (Like an application to make a change on the birth certificate. Specifically, to add the father to the birth certificate) but the father has passed away and the mother has his death certificate as well as a certified copy of a court order for child support from the deceased father. Can you just write deceased where it asks for the father's signature and notarize it. Of course she would still have to mail the application in. To the vital statistics office with her supporting documentation but would she have a problem getting the application for the change on the birth certificate notarized... I'm asking for a friend.

National Notary Associqation

28 Nov 2022

Hello. The mother would need to contact the recording office to ask for instructions regarding the deceased parent.

28 Dec 2023

I am a notary signing agent. I have been asked to do a closing involving (2) executors of an estate selling property to another person. The Company who assigned me the closing states that the (1) executor has already signed and the (2nd) executor will bring her signed pages to the closing. As I know, this is not a legal transaction. How can I still do the closing?

National Notary Association

29 Jan 2024

Based on what you’ve described, we think it would be best if you contacted our Hotline team by phone and provided them with a more detailed description of the situation. The NNA Hotline: 1-888-876-0827 Mon – Fri: 5:00 a.m. – 7:00 p.m. (PT) Saturday: 5:00 a.m. – 5:00 p.m. (PT) If you’re not an NNA Member or Hotline Subscriber, they will provide you with a one-time courtesy call.

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