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Notary Bulletin

What Would You Do Answers: The Case of the Signer and the Unhappy Daughter

Updated 12-17-20. Last week, we shared a real-life situation where a customer arrived at a Notary’s workplace and requested a notarization. However, the customer and Notary did not speak the same language. The customer’s daughter demanded to act as an interpreter, and when the Notary hesitated, demanded to speak with the Notary’s manager.

We asked readers what they would do in this delicate situation, and here are some of the suggestions you provided.

What our Notaries said

Many Notaries said they would refuse the notarization request, because if they cannot communicate with the signer directly during the notarization, there is no way to be sure the daughter is translating the signer’s wishes accurately.

“We cannot use a translator,” Mike Goodey said. “We have no idea if the document gives the daughter a financial interest.” Goodey suggested the signer and daughter should find another Notary who is fluent in the signer’s language.

Some Notaries also pointed out that certain states specifically prohibit using an interpreter during a notarization.

‘In California, we are forbidden to notarize for a client with whom we cannot directly communicate,” said Bari Vaz. “As for the daughter’s statement that ‘We’ve had this type of document notarized before, and the other Notaries didn’t have any problem with me interpreting for my father,’ I would respond that if this occurred in California, then the notarizations were not done legally and could be challenged in court.”

Jose Gomez said the same rules apply in Texas. “If the boss has an issue with my decision, I will remind him that I am responsible first to the state, and to him second,” he said.

A few Notaries suggested using a different interpreter who is not related to the signer to reduce the possibility of bias. Others suggested using a translation app on a phone or other device to interpret the signer’s instructions instead of having the daughter translate. “I might use the app on the iPhone that translates what you type into their language,” said Candi Rosenthal.

Guidance from the NNA

As many readers pointed out, direct communication between the Notary and signer is crucial to ensure that the signer is aware of what they are signing and that the signer is not being compelled against their wishes. Direct communication also is required so that the Notary can confirm the signer properly responds to an oath or affirmation administered by the Notary and follows all instructions given by the Notary. Only a single state (Arizona) has a statute or rule that expressly permits a signer and Notary to use an interpreter for a notarization

In the absence of a statute, rule, or other authority that expressly authorizes Notaries to use an interpreter or translator, Notaries should follow Standard III-C-4 of The Notary Public Code of Professional Responsibility: "The Notary shall not perform a notarial act if the principal or witness identifying the principal, if any, cannot directly communicate with the Notary in the same language, regardless of the presence of a third-party interpreter or translator, unless authorized by law."

Also, Notaries should not use electronic devices or apps to translate, because an app is no different than relying on a human translator to be the intermediary between the Notary and signer, no matter how effectively technology renders the translation.

Furthermore, without speaking the same language, the Notary has no way of knowing if the daughter would benefit in some way from the document, and therefore would have reason to misrepresent her father’s wishes or instructions from the Notary. Just because the daughter claims other Notaries let her interpret — which, as pointed out above, would be a violation of proper procedure in most states — is not a reason for the Notary to acquiesce to this request.

So, what was the actual resolution of the situation? The original Notary, who is commissioned in California, refused to perform the notarization. Unfortunately, the Notary’s manager made a bad judgment call when the daughter complained, and simply assigned a different employee to perform the notarization with the daughter interpreting. This brings up the issue of Notary-employers who direct or order Notary-employees to violate Notary laws and standards of practice. While the Notary did not tell us what happened after that, the second Notary consenting to perform an improper act directed by the manager could have serious consequences for both the second Notary and manager if it was later found that the notarization was legally challenged or was used to commit fraud.

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

Additional Resources:

NNA Notary Hotline

 

 

9 Comments

Add your comment

Stephen Robert Crosby

14 Dec 2020

I am a notary in TX. I have sought legal counsel on this issue. I think you are over-stating things for TX. The TX statute does specify the need for direct communication, but it is regrettably vague on how that direct communication is achieved and regrettably vague on the use of interpreters and does NOT specifically ban them. In fact, there is no mention of interpreters one way or the other in the statute. See 1 Tex. Admin. Code § 87.42. I can forward to you the advice I received from a TX attorney on this matter. Texas courts have UPHELD people using their own interpreters for notarizations, BUT, it shifts the legal burden to the INTERPRETER. I strongly suggest you publish a retraction/clarification on this issue for Texas. I believe with you using an interpreter is BAD practice, and without swearing in the interpreter and taking some other precautions, a notary could be liable.

National Notary Association

17 Dec 2020

Thank you for your feedback, Mr. Crosby. We've made some edits to the article for clarification, and would like to review the advice provided to you by the Texas attorney if your agreeable. You can email us at publications@nationalnotary.org. Thanks and have a good holiday.

Barry Hayes

14 Dec 2020

In saying : I would respond that if this occurred in California, then the notarizations were not done legally and could be challenged in court. Would a notary be offering legal advice?

billg12656@aol.com

16 Dec 2020

I had a notary here in NJ where the person was from pakistan and he wanted give his wife part of his pension but she was not available in person to sign so I called the national notary and they said they would have to take it to their embassy to be notarized and the person got mand and confortational with me

Angel Rodriguez

17 Dec 2020

While I want happy customers, I'm much more interested in protecting myself and livelihood first. The idea of thousands of dollars and time in court and losing my commission over someone being upset because I say I can't is an easy decision for me. I will respectfully as possible let them be upset and politely refuse. Like with any legal matter in any area of law, it's not worth the cost.

Buchananpearl91@gmail.com

21 Dec 2020

What are the laws of Nj in to keep a journal and what are the laws on interpreter

National Notary Association

29 Dec 2020

Hello. New Jersey does not require Notaries to keep a journal.

Stephen Hardy

21 Dec 2020

As a Deaf person who is a commissioned Notary and Signing Agent also a professor of American Sign Language studies. The interpreter is a professional and are used in courts also using a family member is a not encouraged due to emotional involvement. To learn more about certified interpreters, go to www.rid.org. This is a good topic to revisit and make a position paper to help notaries understand the role of sign language interpreters.

Carolyn Craddock

23 Dec 2020

I tend to follow the rule "if in doubt - don't when it comes to notarizing documents. If a person cannot provide what I need from them I will not notarize for them. Its that simple. My employer knows I will not notarize without proper identification from the person -- simply knowing my employer is not proof of identification for me, by the way. If I don't know them, they have to show proper identification. And I would never notarize for a person who doesn't speak the same language as me.

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