Notary's Legal Advice: What's The Limit?

A notary public is a person authorised to perform acts—such as witnessing and authenticating signatures, documents, and contracts—in legal matters. However, they are not permitted to advise persons on questions of law. In fact, a non-attorney notary may not participate in the unlicensed practice of law. Notaries must be impartial witnesses and cannot have any vested interest in the outcome of the transaction. In the US, some states have laws that prevent notaries from performing notarial acts for spouses and family members, while other states, including California, allow notaries to perform notarial services for relatives or spouses as long as they are not named in or beneficiaries of the transactions.

Notaries cannot advise on legal matters

A notary public is not authorised to advise on legal matters. They are not permitted to participate in the unlicensed practice of law. In other words, a notary public cannot act as an attorney or lawyer.

The role of a notary public is to act as an impartial witness to the signing of a document. This means that they must not have any vested interest in the outcome of the transaction. They are responsible for authenticating signatures and completing transactions. For instance, a notary public may make a certified copy of a non-recordable document. A non-recordable document is one that cannot be recorded with a governmental entity.

In some states, there are laws in place that prevent notaries from performing notarial acts for spouses and family members. This is to ensure that the notary remains an impartial witness. However, in states such as California and Ohio, notaries are allowed to perform notarial services for relatives or spouses, as long as they are not named in or beneficiaries of the transactions referenced in the document.

If a notary public has any doubt about their ability to remain impartial, they should recommend that the person works with another notary.

Notarization requires in-person identity verification

In-person identity verification is a critical step in performing a notarial service. This is to ensure that the notary public can verify the identity of the person appearing before them and safeguard against fraud.

The person for whom a notarization is performed must personally appear before the notary public at the time of the notarization. This is a requirement, and the notary must identify the individual. However, there are some exceptions. If the notary is personally familiar with the signature of the individual, they may not require them to appear in person when executing an affidavit. Additionally, if the person does not have an acceptable form of ID and is not known to the notary, some states allow a credible witness to verify the individual's identity. This witness must meet the minimum requirements according to local state law and must not be connected to the notarial transaction.

There are various forms of ID that are accepted in most states, including US passports, driver's licenses, military ID cards, and other official government-issued IDs. It is important to note that the ID must be current and valid to be considered acceptable for notarization. Some states may also require two forms of identification to be presented at the time of signing.

Notarization is a sensitive task, and notaries must be vigilant to spot fake or counterfeit IDs. While there are standard forms of ID accepted across all 50 states, such as driver's licenses and state ID cards, there are also state-specific requirements that notaries must be aware of. For example, Texas law requires that the identifying document must be issued by a state or federal government agency and include a photo and signature.

In summary, notarization requires in-person identity verification to ensure the accuracy and security of the process. While there are exceptions and variations across states, the critical role of the notary public in verifying identities cannot be overstated.

Notaries cannot perform notarial acts with a conflict of interest

A notary public is expected to be honest and impartial in their work. Notaries should not perform notarial acts if there is a conflict of interest, including personal or financial gain for them or their family members.

A conflict of interest may arise if the notary:

• Is a party to the transaction or instrument.
• Is named in the document.
• Has a direct financial or beneficial interest in the transaction, other than the notary public fee.
• Has a spouse or relative who has a direct or pecuniary interest.

For example, if a notary stands to gain financially from a transaction, they are not considered impartial and must not perform the notarial act. Similarly, a notary cannot be considered impartial towards a family member, even if neither the notary nor their family member benefits from the document.

In addition, notarizing a document as a witness may create a conflict of interest if the notary is also required to notarize other signatures on the same document.

Notaries cannot perform notarization if they are a party to the instrument

A notary public is a neutral witness to the signing of documents. They are responsible for verifying the identity of signers and ensuring they have entered into agreements knowingly and willingly. While a notary may advise on simple questions of law, they cannot participate in the unlicensed practice of law.

Notarizations should not be performed by a notary public who is a party to the instrument or has a direct financial or beneficial interest in the transaction. This is because the notary must remain impartial and unbiased when facilitating the signing of documents. If a notary has a personal stake in the outcome of the transaction, they may be influenced to act in their self-interest rather than in the best interest of all parties involved.

For example, a notary cannot notarize their own signature on a document. They are considered to have a direct benefit if they are a signer of the document. Similarly, a notary should not notarize a will in which they are named as a beneficiary, even if they are not signing the document themselves. In this case, the notary has a direct interest in the outcome of the will and would not be impartial.

Another example is a notary notarizing their spouse's signature on a business contract. Even if the notary is not a party to the contract themselves, their spouse's involvement creates a direct connection to the instrument. The notary's impartiality could be called into question as their actions could potentially impact their spouse's interests.

In summary, a notary must remain unbiased and act in the best interest of all parties involved in a transaction. If a notary is a party to the instrument or has a direct interest in the outcome, they cannot provide impartial facilitation and must recuse themselves from performing the notarization.

Notaries can make certified copies of non-recordable documents

While a notary public may not advise persons regarding questions of law, they can make certified copies of non-recordable documents. A non-recordable document is one that cannot be recorded with a government entity. In other words, it is not a public record or a vital record. Vital records include birth certificates, death certificates, and marriage and divorce records.

A notary public can make a certified copy of a non-recordable document by following these steps:

• They must be presented with the original document for comparison purposes or to make/witness the photocopy.
• They should observe the conditions and procedures for the notarial act, which vary by state. For example, some states require notaries to either make or witness the making of the photocopy, while others allow them to compare a previously made photocopy with the original.
• They should securely attach the completed notarial certificate to the photocopy, either by printing it on the photocopy itself or attaching it as an additional sheet.
• They must record the notarial act in their record book (journal), noting the date and time, the type of act, a description of the document, the number of pages, and the document date. They should also ask the person presenting the document to sign their record book and include that person's name and how they were identified.

It is important to note that state laws regarding copy certification vary. For example, in California, notaries can only certify copies of a power of attorney or copies of their own journal entries under certain circumstances. Some states, like Nebraska and Michigan, do not allow notaries to certify copies of legal documents, while other states restrict the types of documents that can be certified.

Frequently asked questions