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3 Important Tips For When A Document Lacks A Notary Certificate

confused-no-cert-resized.jpgThe simplest way to know what type of notarization is needed on a document is to look at the Notary certificate. If it is an acknowledgment form or the wording has any variation of the word “acknowledge” in it, you perform an acknowledgment. If it is a jurat or verification form, or the wording has the words “subscribed and sworn,” you perform a jurat or verification. But what do you do if there’s no certificate? Here are three important steps to follow in this situation:

1. Avoid the unauthorized practice of law.

If you aren’t an attorney, remember that it’s against the law for you to provide unauthorized legal advice. This includes answering simple questions from a signer such as “What notarization do you think I should use here?” or “Which certificate form should I use?”

Giving that sort of advice is a violation of law and can result in some states with being charged with a criminal offense or possibly losing your Notary commission. And, if you give a signer the wrong information and it causes the signer legal problems, you could be forced to pay costly damages in a lawsuit.

When faced with the need to know the type of notarization a signer needs, always follow these rules: 

  • Never choose the type of notarization for the signer, even if the signer wants you to.
  • Never give a signer advice about the type of notarization a particular document needs. For example, you should never say, “Most power of attorney documents I notarize require an acknowledgment.” You have no way of knowing if the signer’s document is an exception to the norm. Even if it isn’t, you’re unlawfully practicing law because you are applying legal concepts to a signer’s particular situation.

2. Ask the signer to choose.

While you can’t choose the notarization for a document, the signer can. If the signer can tell you the type of notarization they want, you can simply proceed from there.

However, most signers are unaware that there is more than one type of notarization or how to distinguish one from another. If the signer isn’t sure what they want, it’s OK to describe the different notarial acts the law authorizes you to perform and allow the signer to pick the one they want. For example, you can describe how acknowledgments and verifications (or jurats) differ and let the signer choose between them. Again, the most important thing is not to make the choice for them.  

3. Check with the issuing or receiving agency. 

If the signer still isn’t sure which notarization they need, they should contact someone who knows. This could be the individual or agency that issued the document, or the one that will receive it. If they can’t provide help, the signer may need to consult with an attorney who can give legal advice about the document.

David Thun is an Associate Editor at the National Notary Association. 

3 Comments

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Michael Green

21 Apr 2018

There has to be some way for a notary to identify a clearly erroneous form, e.g., an acknowledgment form attached to a real estate contract where state law says a jurat is required. The notary faces risk not only from giving prohibited legal advice, but also from executing a notarial act that appears to be illegal on its face. You mentioned the former risk, but not the latter.

MisterJ

19 Jun 2018

I have the same question as Michael Green. What is the official NNA stance on this?

National Notary Association

19 Jun 2018

Hello. Notaries are not permitted to give unauthorized legal advice. That includes nonattorney Notaries choosing the notarization on the signer's behalf. As stated previously in the article, "Never give a signer advice about the type of notarization a particular document needs. For example, you should never say, 'Most power of attorney documents I notarize require an acknowledgment.' You have no way of knowing if the signer’s document is an exception to the norm. Even if it isn’t, you’re unlawfully practicing law because you are applying legal concepts to a signer’s particular situation."

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