May I take the acknowledgment of or administer an oath to a signer, and then affix my seal and signature at a later time?

In Florida, it is required that the entire notarial act be performed in the presence of the person signing. This includes the affixing of your notarial seal and official signature. Florida Attorney General Opinion 073-185 (dated May 24, 1973) states that the affixing of the notary's seal is a part of the notarial act, and that, because the notarial act must be performed in the presence of the signer, the seal must likewise be affixed in the signer's presence.

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA
No. 073-185
1973 Fla. AG LEXIS 215; Op. Att'y Gen. Fla. 1973-185
May 24, 1973

NOTARIES PUBLIC
ELEMENTS OF ACT OF NOTARIZATION--DUTIES RELATED THERETO

SUMMARY:

Notarization of a document is not complete until the statutory requirements are met. The notary public must sign his official signature and the expiration date of his commission, affix his seal, require reasonable identification of the signer, and the signer must be present at the time his signature is notarized. When the person whose signature is being notarized is not present during the notarization, the notary public is derelict in his duty and has violated the provisions of § 117.09(1), F. S.

REQUEST BY:
Joseph P. D'Alessandro, State Attorney, Fort Myers

QUESTION:
When a notary public watches an individual sign a document and the document is held by a person other than the notary public until a later date, at which time the notary affixes his signature, stamp, and seal upon said document, when does a notarization occur, and; has the notary public who performs the notarization at such later date violated Florida laws?

OPINION BY:
Enoch J. Whitney, Assistant Attorney General; David F. Albrecht, Legal Intern

OPINION:
In many cases, for a document to be duly executed and to have legal effect, it is required that the instrument be acknowledged, attested, protested, or published before a notary public. See §§ 117.03 and 117.04, F. S.

In answer to the first part of the above question, I refer you to § 117.07, F. S., as amended by Ch. 72-8, Laws of Florida, which states:

(1) Every notary public in the state shall add to his official signature to any certificate of acknowledgment made before him a statement of the time of the expiration of his commission as notary public in words and figures as follows: "My commission expires ___" (Herein insert the date when the commission expires.)

(2) A notary seal shall be affixed to all documents notarized, which may be of the rubber stamp or impression type and shall include the words "Notary Public--State of Florida at Large." The seal may also include the name of the notary public.

This statute sets forth three of the five elements of notarization: The notary public must sign his official signature; the commission expiration date must accompany the signature; and "a notary seal shall be affixed to all documents." Section 117.09(1), F. S., sets forth two additional requirements of notarization: There must be reasonable proof of the identity of the person whose signature is being notarized; and the signer must be present at the time his signature is notarized.

Under these statutory provisions, I am of the opinion that notarization of a document cannot reach completion until a notary public has complied with the aforesaid statutory requirements.

Answering the second part of your question: Section 117.09, F. S., states, in part, that the person whose signature is being notarized "must be in the presence of the notary public at the time the signature is notarized."

Assuming this requirement is met, there appears to be no legal reason why the notarization of a signature cannot be performed at a date subsequent to the date on which the notary public sees the person sign such signature, so long as all of the above-discussed elements of notarization are fulfilled.

However, if the person whose signature is being notarized is not in the presence of the notary public at the time of notarization, it would appear that the notary has violated § 117.09(1), F. S. In this regard, see DeCamp v. Allen, 156 So.2d 661 (1 D.C.A. Fla., 1963), at 662 and 663, where the court stated that notaries public are "derelict in their duty if they notarize an acknowledgment without the signatories personally appearing before them."

Thus, it appears clear that a notary public is accountable and responsible for seeing that the provisions of Ch. 117, F. S., are adhered to in performing notarizations.

Pocket reference guide for Florida notaries

Download this handy pocket reference guide for Florida notaries: click here.

The one-page document includes the statutory certificates for an acknowledgment individually, acknowledgment in a representative capacity, oath or affirmation (jurat), and attested copy. It also includes a list of the required elements of a Florida notarial certificate, a list of acceptable forms of identification, and important reminders on taking acknowledgments and administering oaths.

What legal services can Florida notaries provide without being accused of UPL?

Unless a notary is also a licensed attorney, he may not give legal advice or accept fees for legal advice. Case law has established what a non-lawyer can provide as legal services (Fla. Bar v. We the People Forms & Serv. Ctr. of Sarasota, Inc., 883 So. 2d 1280). There is nothing prohibiting a non-lawyer notary from selling blank legal forms, from typing in legal forms completed by a client, from selling general printed legal information, or from selling their own notarial services. What a notary can not do is advise a client as to what type of notarization is necessary, make changes to documents prepared by clients, or explain documents to clients.

Of course, notaries who work as a paralegal or legal assistant, under the supervision of an attorney who is a member of the Florida Bar, are free to draft or explain documents under attorney supervision. However, when a notary-paralegal drafts documents, they are doing so in their capacity as a paralegal, and not as a notary. Similarly, notaries employed by title agencies may frequently draft real estate closing documents and explain those documents to clients.

What does the phrase "and who did/did not take an oath" mean, and what do I do with it?

For only one year did the phrase "who did/did not take an oath" appear in Florida Statutes, and yet it became such a popular phrase that it is now standard on many pre-printed forms. It is important that you know how to deal with this wording in the appropriate manner to avoid contradicting yourself.

If the pre-printed certificate is an acknowledgment, you should first be sure that the document doesn't require an oath. Look for the words "sworn", "swear", or "affirm" in the document. Many times, if the document is an affidavit, it will open with the wording "Before me personally appeared _________, who being duly sworn deposes and says:". In this instance, the document requires a jurat rather than an acknowledgment, and you should therefore strike out the certificate and replace it with a jurat. If the document doesn't require an oath, you may use the pre-printed acknowledgment certificate. In this case, if the phrase "who did/did not take an oath" appears, you may strike out the entire phrase, or you may strike out the word "did" and underline or circle "did not", so it reads "who did/did not take an oath". You should not simply leave the phrase as is; you must either select an option or strike it completely.

When taking an acknowledgment, an oath is not necessary. An acknowledgment is only an indication by the signer that the signature on the document is their own, and that they executed the document voluntarily, in their authorized capacity, for the purposes therein expressed. This declaration is not sworn to by the signer; it is simply declared or indicated.

Archie v. State, 660 So.2d 348 (Fla. 1st DCA 1995), discusses "acknowledgments under oath" in its dissenting opinion. The dissenting judge in that case, in reference to an acknowledgment certificate containing the phrase "and who did take an oath", stated:

"An 'acknowledgment', even under oath, is nothing more than a confirmation by [the signer] that the signature is genuine. It is not equivalent to swearing under oath that the facts alleged are true and correct."

Thus, an acknowledgment certificate containing the phrase "who did take an oath" requires the signer of the document to swear that the signature is genuine. Administering such an oath does not make the acknowledgment any more or any less valid; it is, in all reality, completely unnecessary. In addition, you should specifically note that adding the phrase "who did take an oath" to an acknowledgment does not make the certificate a jurat, and it is therefore unacceptable for use on an affidavit or other document requiring an oath to be administered.

If the "who did/did not take an oath" language is printed in a jurat, you must always indicate that the signer did take an oath. If you state that the document was "sworn to", but that an oath was not taken, you are contradicting yourself.

Notary 101: What is the difference between a jurat/oath and an acknowledgment?

The most important thing a notary must know is the difference between an oath and an acknowledgment. Each of these duties are described in detail in previous articles, but a simple explanation is provided in Pina v. Simon-Pina, 544 So.2d 1161 (Fla. 5th DCA 1989):

Confusion often arises between an affidavit and an acknowledgment. Both memorialize acts done before a notary. But, in an affidavit [jurat] [...], the person swearing before the notary must under oath attest that the facts set forth in the document are true. In an acknowledgment, the person merely declares that he executed and signed the document.

What are the authorized uses of the notary seal?

The law establishing the official seal of notaries public is set forth in section 117.05(3) of the Florida Statutes. That statute authorizes a notary public seal to be affixed to all "notarized paper documents", and defines "official seal" as the rubber stamp (as discussed in a separate article regarding the components of a notary public's seal).

The question arises, what constitutes a "notarized paper document" which permits the affixation of a notary seal? The phrase "notarization" is not defined by statute, but when "notarizing a signature" it is implied that you are either taking an acknowledgment or administering an oath on a paper document. Thus, it is obvious that a notary seal should be used for these notarial acts. In addition, F.S. 117.05(4)(i) requires that when notarizing a signature, a notary public shall complete a jurat or notarial certificate, which must contain the notary's official seal affixed below or to either side of the notary's signature.

There are other instances under Florida law where a notary seal may be used. F.S. 117.05(12)(b) authorized use of a notary seal when attesting to a photocopy. F.S. 117.03 states that a notary public may administer an oath and make a certificate thereof when it is necessary for the execution of any writing or document to be published under the seal of a notary public.

Although not specifically authorized or required by law, notaries traditionally use their seal for other official acts, including drafting protests, verifying a Vehicle Identification Number, drafting a certificate of the contents of a safe deposit box, or solemnizing the rites of matrimony (performing a marriage ceremony). These uses have been approved by the governor's office. However, aside from these exceptions, the notary seal should not be affixed to any other documents not being executed as the notary's official act. Although other uses of the seal are not specifically prohibited by law, a good rule of thumb to keep in notarial practices is, "If it is not specifically authorized by law, it is probably best not to do it."

A notary may never simply "witness a signature" and affix their seal to a document without completing a notarial certificate.

Why do we need notaries?

The public generally views notaries as a seemingly unimportant inconvenience. To them, all notaries do is match signatures to IDs. They don't care about the notarial act or proper notarial procedures; they just want "the stamp" so they can "legalize" their document and go about their business.

Unfortunately, many notaries themselves also view their public office in this same light. Many notaries who become commissioned for their jobs chose to "get their notary" or "get their stamp" so they could "seal the deal" and get the job done, whether it meant notarizing without the signer present, backdating, overlooking lack of identification, and so on. Yes, these are the notaries who don't complete the venue, don't administer an oath, don't use an embosser, don't print their name under their signature, combine oaths and acknowledgments in the same certificate, and certainly can't be bothered with keeping a notary journal, a tradition which goes back hundreds and hundreds of years to Roman times.

These notaries are the ones who have brought the overall standard of the office of notary public down. A hundred years ago, notaries were publicly perceived as being of valuable service to the public. The reason we still need notaries today is the same reason we needed them a hundred years ago.

The government can not be everywhere at once. The public does not have easy access to a judge to authenticate their documents. Without notaries, people would have to take time off of work, travel to a courthouse, very likely wait long amounts of time, and have a judge formally take the person's acknowledgment of execution of a deed or other document. Were that the case, the public would be begging the government to appoint local officials to assist them in their everyday transactions. Hence, the appointment of the first notaries public nearly 200 years ago in the State of Florida.

A good way to look at notaries is to view them as state officers whom the governor appoints and sends out into the community to assist the citizens in transforming their private transactions and documents into public transactions and documents, thus allowing their documents to be recorded, accepted by government agencies, and accepted by the court. Notaries, in their capacity as state officers, serve as state witnesses to ensure that no document is signed under duress and that signers of documents have full understanding of the documents content's, and, if necessary, that the signers have sworn to the document's contents.

In recent years, the purpose of notaries has increased to include a deterrent to identity fraud. Thus, notaries began to check identification and make sure that the signer of the document is the person they claim to be. Without these important public officials, public records would be unreliable and inconsistent, and forgery and other fraud would be rampant.

This is not to say that the current system for appointing notaries is perfect. To the contrary, the government's system of approving all notary applicants with very limited education, regardless of their career background, has made the very important notarial acts of taking acknowledgments and administering oaths fade into the background, as the public only wants "their notary stamp" and doesn't care whether the notary administers an actual oath or takes an actual acknowledgment. Perhaps bringing the office of Notary Public "back to basics" would raise the standard of the office and would increase public awareness of the very important duties with which notaries public have been entrusted by the state.

The world still needs notaries. We daily prevent fraudulent power of attorneys from being obtained over incompetent seniors. We daily prevent fraudulent transfer of real and personal property. We daily enforce justice by subjecting those who lie under oath to criminal punishment. We daily prevent identity fraud by verifying capacity to execute documents. We do not simply "verify signatures", nor do we "witness signatures", "verify identification", and we certainly do not just simply "stamp things". Notaries public have a long history of serving the people of Florida; and although the people of Florida may not realize just how vital notaries are, we do serve as public officers of the state who do our very best to ensure that no transaction is made fraudulently.

Is it illegal to alter a completed notarial certificate?

Yes. Neither the notary nor any other person or entity may alter a completed notarial certificate. F.S. 117.107(8) provides:

A notary public may not amend a notarial certificate after the notarization is complete.

In addition, F.S. 831.01 provides:

Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any [...] notary public [...] shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Unique Jurats

As discussed in my previous post about administering oaths, a jurat is a certificate given under the hand and seal of the notary public where they certify that the signer of a certain document took an oath that the document's contents are correct and signed the document in the notary's presence. Most jurats a notary comes across will be fairly similar to the one provided in Florida Statutes, i.e.:

STATE OF FLORIDA
COUNTY OF ________________

Sworn to (or affirmed) and subscribed before me this _____ day of ___________, 20__, by __________________________, who [ ] is personally known to me or [ ] has produced ____________________________ as identification.

Signature of Notary Public - State of Florida
Print, type, or stamp commissioned name of Notary Public

If the jurat does not contain all of the above information, such as the venue or type of identification, the Florida notary must, of course, add this information to the certificate, either by printing or typing the additional information onto the pre-printed certificate, or by making a new certificate.

However, although the above form of jurat is certainly the most common, it does not necessarily preclude the use of other forms, provided that the form used contains all of the required information. Another acceptable jurat form would be:

State of Florida
County of __________________

The above named affiant, _________________________, proved to me on the basis of (type of identification) , personally appeared before me, the undersigned Notary Public, and, being by me duly sworn, did depose and state under oath the the statements contained in the foregoing instrument are true and correct to the best of his knowledge, and he did thereupon subscribe his name to the foregoing instrument in my presence, this ______ day of ______________________, 20_____.

_______________________________
Name of Notary Public: ____________________
Notary Public - State of Florida
My Commission Expires:
_______________________________

Although this form may throw you off, it does contain all of the required elements of a jurat under Florida law and is therefore perfectly acceptable.

Another thing to keep in mind is that Florida law distinguishes "administering oaths" and "taking affidavits" as two separate acts under F.S. 92.50. However, in reality, an affidavit is nothing more than a sworn statement made before an officer authorized to administer oaths. It is not considered Unauthorized practice of law for a notary to draft an affidavit for a client; that is, if a client comes to a notary and states that they wish to make a sworn statement, the notary may write or type the statement onto an affidavit form, and "take the affidavit" by administering an oath and executing a jurat. An affidavit is typically made in the following form:

STATE OF FLORIDA
COUNTY OF _________________

Before me, the undersigned authority, personally appeared (name of affiant), who, being by me duly sworn, deposes and says:

(sworn statements are inserted here)

________________________________
(Signature of affiant)

Sworn to (or affirmed) and subscribed before me this _____ day of ___________, 20__, by __________________________, who [ ] is personally known to me or [ ] has produced ____________________________ as identification.

Signature of Notary Public - State of Florida
Print, type, or stamp commissioned name of Notary Public

You will note that the venue is not required to be immediately above the jurat because it already is stated at the beginning of the affidavit where the notary's certificate begins ("Before me, the undersigned authority...").

Since the taking of affidavits is an authorized duty of a notary public considered separate from general administration of oaths, a notary could also make a sworn statement into an affidavit (at the request of the client) by using the following certificate:

STATE OF FLORIDA
COUNTY OF __________________

The foregoing affidavit was taken by me, the undersigned officer, by virtue of the authority in me vested, the same having been this day sworn to and subscribed in my presence by the within-named _____(name of affiant)______, who [ ] is personally known to me or [ ] has produced _________________ as identification.

Given under my hand and official seal, this _____ day of _______________, 20___.

Signature of Notary Public - State of Florida
Print, type, or stamp commissioned name of Notary Public

Statutory Short Forms of Acknowledgment

Section 695.25 of the Florida Statutes provides "short forms" of acknowledgment certificates that are sufficient for their respective purposes under any law of the State of Florida. These forms do not, of course, preclude the use of the acknowledgment certificates set forth in chapter 117, F.S., nor do they preclude the use of formal "long form" acknowledgments. However, particularly for real estate related documents, the majority of documents you come across as a notary will use these forms. Therefore, it is important that the notary have a thorough understanding of these "Statutory Short Forms of Acknowledgment".

The most common mistake that notaries make with these forms is in notating the method of identification. The statutory forms use the phrase "who is personally known to me or has produced _______ as identification", but they do not provide check boxes or other means for a notary to select the appropriate option. Therefore many notaries simply leave the phrase alone if the signer is personally known, or, if the signer produces identification, they simply fill in the type of identification in the blank space. However, even leaving the phrase as "who is personally known to me or has produced a Florida driver's license as identification" leaves both methods of identification as possibilities without specific notation as to which was used.

It is therefore imperative that the notary circle or underline the appropriate option and strike out the remaining portion. Therefore, if the signer is personally known to you, the phrase should appear as:

who is personally known to me or who has produced ________________ as identification.

Likewise, if identification is used, the phrase should appear as:

who is personally known to me or who has produced Florida driver license as identification.

If the certificate provides checkboxes however, it is sufficient to simply check off the applicable option without striking out any language, as in "who [ ] is personally known to me or [ X ] has produced FL Driver License #1234567 as identification".

You will also notice that underneath the signature line are spaces for the notary to print his commissioned name, print his title or rank (i.e. "Notary Public - State of Florida"), and serial number (i.e. commission number -or- Notary I.D. number, depending on personal preferenced - this is further discussed in a separate article).

(1) For an individual acting in his or her own right:

STATE OF _____
COUNTY OF _____

The foregoing instrument was acknowledged before me this (date) by (name of person acknowledging), who is personally known to me or who has produced (type of identification) as identification.

(Signature of person taking acknowledgment)
(Name typed, printed or stamped)
(Title or rank)
(Serial number, if any)

(2) For a corporation:

STATE OF _____
COUNTY OF _____

The foregoing instrument was acknowledged before me this (date) by (name of officer or agent, title of officer or agent) of (name of corporation acknowledging), a (state or place of incorporation) corporation, on behalf of the corporation. He/she is personally known to me or has produced (type of identification) as identification.

(Signature of person taking acknowledgment)
(Name typed, printed or stamped)
(Title or rank)
(Serial number, if any)

(3) For a partnership:

STATE OF _____
COUNTY OF _____

The foregoing instrument was acknowledged before me this (date) by (name of acknowledging partner or agent), partner (or agent) on behalf of (name of
partnership), a partnership. He/she is personally known to me or has produced (type of identification) as identification.

(Signature of person taking acknowledgment)
(Name typed, printed or stamped)
(Title or rank)
(Serial number, if any)

(4) For an individual acting as principal by an attorney in fact:

STATE OF _____
COUNTY OF _____

The foregoing instrument was acknowledged before me this (date) by (name of attorney in fact) as attorney in fact, who is personally known to me or who has produced (type of identification) as identification on behalf of (name of principal).

(Signature of person taking acknowledgment)
(Name typed, printed or stamped)
(Title or rank)
(Serial number, if any)

(5) By any public officer, trustee, or personal representative:

STATE OF _____
COUNTY OF _____

The foregoing instrument was acknowledged before me this (date) by (name and title of position), who is personally known to me or who has produced (type of
identification) as identification.

(Signature of person taking acknowledgment)
(Name typed, printed or stamped)
(Title or rank)
(Serial number, if any)

Fees for Notarial Services

F.S. 117.05(2)(a) provides that notaries public are authorized to charge a maximum of $10.00 for each notarial act, except the solemnization of matrimony. There has been question among notaries as to what constitutes a "notarial act" according to the state. Many notaries believe that if two people execute the same document and each acknowledge their signature before a notary public, this is considered two notarial acts and therefore $20.00 may be charged, even if both persons names are listed in the same acknowledgment certificate.

While this makes sense in theory, the state considers a "notarial act" to be the execution of one notarial certificate. Thus, the rule of thumb is "$10.00 per stamp". However, the state has also acknowledged that there is nothing prohibiting a notary from simply adding a loose certificate for each signer, therefore allowing the notary to collect $10.00 for each signer's signature. Of course, when administering an oath without a jurat (i.e. for a deposition, telephonic court appearance, etc.), the notary may still charge $10.00 for each oath administered.

The only exception is the fees for solemnizing marriage. F.S. 117.045 provides that notaries are authorized to charge the same as the Clerk of Circuit Court for performing a marriage ceremony. Clerks are currently authorized by F.S. 28.24(24) to charge $30.00 for that service; therefore notaries are also authorized to charge $30.00. This works to notaries benefit, because clerk fees can be easily raised due to political/budget reasons, whereas state officials generally have little concern with notary fees, since they belong to the notary and not to the state.

To summarize, limiting your fees to $10.00 per stamp will prevent you from being accused of overcharging.

Oath vs. Affirmation

Although an oath and affirmation are equivalent under Florida law (F.S. 92.52), there are subtle differences between the two. The first and most obvious difference is the way they are administered by the notary. When administering an oath, the common language is for the notary to ask the declarant, "Do you swear that the contents of this document are true and correct?". However, if a declarant wishes to affirm rather than swear, either for religious or other personal reasons, the notary would ask, "Do you declare and affirm under the penalties of perjury that the contents of this document are true and correct?".

The "under penalties of perjury" language is typically not said when administering a standard oath, because it is already implied that false swearing is perjury. The declarant's requesting an affirmation instead of an oath does not remove the declarant's assumption of the obligations of an oath, and to make this fact clear to the declarant, notaries will typically ask the declarant to affirm under penalties of perjury.

An oath is defined as a promise to a supreme being. Whether or not you include language such as "so help you, God" in your oaths, the purpose of an oath is to appeal to the declarant's conscience, and for religious persons, this is best accomplished by having him or her swear in accordance with their own religious practices. However, some persons will have an objection to taking an oath, either on the grounds of being non-religious or on the grounds that the Bible states that people should not swear at all, but rather to always speak the truth. In these cases, you can administer an affirmation.

An affirmation is not a promise to a supreme being, but is rather a declaration made on the person's own conscience without appealing to the person's religious beliefs.

Most notaries will never come across a person who objects to taking an oath. However, it is still important to know how to address the situation if you come across it, and it is important to know the subtle differences between an oath and an affirmation.

How do I administer an oath without looking like a fool?

It is an unfortunately common practice amongst notaries across the entire nation to execute jurats without administering an oath to the signer. Doing so, however, defeats the entire purpose of the jurat. Most notaries don't administer oaths because they don't know how to do it without looking silly. You do not have to raise your right hand and do not have to make a huge performance out of administering an oath, although you are certainly allowed to do so if you have the guts. However, administering oaths can be done very casually without the document signer raising an eyebrow or giggling.

One of the most important Florida cases for notaries is that of Youngker v. State (215 So. 2d 318), which deals with the proper administration of oaths. Below are some of the most important quotes from the Court's opinion:

"An affidavit is by definition a statement in writing under oath administered by a duly authorized person. An oath may be undertaken by any unequivocal act in the presence of an officer authorized to administer oaths by which the declarant knowingly attests the truth of a statement and assumes the obligation of an oath."

- This quote is important because it establishes that an affidavit is a writing under oath. Therefore, when an affidavit is presented to a notary with a pre-printed acknowledgment, the notary has the authority, and is required to, replace the acknowledgment with a jurat, in accordance with F.S. 117.03 which states that a notary may not take an acknowledgment in lieu of an oath when an oath is required.

"Where an officer authorized to administer oaths identifies his signature on a jurat together with the signature of the person making the statement, this is prima facie evidence that the declarant was in fact sworn."

- This quote further emphasizes that an actual oath must be administered by the notary. A jurat is evidence that the declarant was sworn, therefore the declarant must be sworn for the jurat to be true and correct.

From the testimony of the notary it is conclusively shown that she did not administer a verbal oath either by asking the defendant whether or not he swore to the statements in the waiver of lien [1] or by asking him to sign the waiver of lien if he swore to the statements therein [2]. In the absence of some verbal act by the officer or the defendant, is the mere signing of the waiver of lien by the defendant competent substantial evidence that defendant knowingly attested the truth of the statements in the waiver and assumed the obligations of an oath? We are compelled to the conclusion that the mere signing of the waiver of lien, under the facts and circumstances of this case, is not competent substantial evidence that the defendant knowingly assumed the obligations of an oath. In the first place, the form of the instrument is not that generally employed in drafting affidavits. Nowhere does it say that it constitutes an oath or affidavit of the defendant. Secondly, there was no evidence that the notary or any other person called the defendant's attention to the fact that the jurat on the lower left hand side of the page would be completed for the purpose of constituting the document a sworn statement [3]. For all that appears from the record, the defendant may reasonably have concluded that he was signing a bare assertion as distinguished from a sworn statement. For these reasons, we conclude that the evidence was insufficient to constitute competent substantial evidence that the waiver of lien was an affidavit within the meaning of F.S. 1963, Section 84.351, F.S.A.

- This quote establishes acceptable ways for an oath to be administered:

1. Asking the declarant whether or not he/she swears to the statements in the document. ("Do you swear that the statements in this document are true?")
2. Asking the declarant to sign the document if he/she swears to the statements therein. ("If you swear that the statements in this document are true, please sign.")
3. Calling the declarant's attention to the fact that your notarization of the document would cause it to become a sworn statement. ("Do you understand that by my notarizing this document, you are swearing to the statements therein?")

- This quote also establishes that the mere signing of an affidavit does not make it "sworn to". The administration of the oath must be done by some unequivocal act, either by the notary or by the declarant/affiant/deponent/signer.

Bottom line is, both you and the signer must leave no doubt that the signer is swearing that the contents of the document are true, and any of the above methods are acceptable under Florida law.

The easiest way to administer an oath is to, right before the person signs the document, say very casually, "Do you swear that the contents of this document are true and correct?", to which the signer will answer "Yes" or "I do". This entire procedure can be accomplished in 3 seconds, and there is no need to break a sweat over it. Fellow notaries may snicker at you the first time they see you do it, but in this case it is best to lead by example. Show other notaries that administering oaths does not have to be an embarrassing situation and can be done casually and still in total compliance with the law. As evidenced by the above-referenced case, an affidavit can be dismissed if the notary failed to administer an oath, even if the affidavit on its face appears to have been executed perfectly. By making it a habit with every jurat, there will never be a doubt in your mind that your documents have been properly notarized and will not be questioned.

Why was my notarization rejected by the apostille office?

Notarized documents which are to be used overseas usually require an apostille. This is a document issued by the Department of State which is attached to the notarized document to make it acceptable abroad. Each apostille costs $10.00, and it is the responsibility of the document holder, not the notary, to secure the apostille. However, the Department of State will not issue an apostille if the notary’s certificate does not comply with Florida Statutes.

Most notaries are not aware of all of the strict requirements of notary certificates as set forth in Florida Statutes §117.05(4). Most typically, the notary fails to print, type, or stamp their commissioned name immediately underneath their signature. This must be done in addition to affixing your official seal stamp. If you choose to "stamp" your name underneath your signature instead of printing or typing it, you must use a stamp separate from your official seal.

Another common mistake is failing to include a venue. Every time you notarize a document, the words "State of Florida, County of _____________" must appear above the notarial certificate. The county you fill in is the county where you are physically located when you notarize the document. You must also always indicate whether the signer was identified by your personal knowledge or by another form of identification, and you must specify the specific type of identification used.

Notary Public vs. Medallion Signature Guarantee

From time to time, you may be asked by a customer if you do "signature guarantees". What they are really asking for is a "medallion guarantee", a process used to verify signatures on documents related to investment or security transfers. Medallion guarantees can only be performed by authorized officers of certain financial institutions; not all banks offer the service, and those that do require that the signer of the document be an established customer of the bank.

While one of the benefits of a notarized acknowledgment is that it provides the document recipient with peace-of-mind that the authorized person actually executed the document, the true purpose of acknowledgments is to determine willingness to sign, not necessarily the identity of the signer. Nor do medallion guarantees necessarily identify the signer, and they certainly do not determine willingness to sign. A medallion guarantee is simply a guarantee by a financial institution that the signature on a certain document is authentic, based on that person's signature on file with the bank. This makes the financial institution 100% liable for the total value of the security transfer in the event the signature is proven to be a forgery.

Whereas notaries are not concerned with the document being notarized, the officer giving a medallion signature guarantee will examine the document to ascertain the name of the investment/security firm and the total amount of the transaction. The offer is required to keep a journal of this information, as if the signature later turned out to be forged, the financial institution would be responsible for the total value of the transaction. A notarization is a public act administered by a state officer, whereas a medallion guarantee is a private verification of signature given by a financial institution.

However, similar to a notary seal, the medallion guarantee is accomplished with the use of an official stamp, whose design is determined by federal authorities, and which must be affixed with a special green ink to verify the stamp's authenticity. A sample of the stamp imprint is displayed to the left. The stamp is safeguarded by bank officials and typically only few bank officials are authorized to use it. The officer giving the signature guarantee is not required to complete any sort of notarial certificate. The stamp itself is proof of the entire act, unlike a notary seal, which by itself is meaningless.

If a client asks for one of these types of guarantees, you should refer them to their personal financial institution for more information.

Bonding Agency Information

Comparison Chart

This PDF chart includes the total cost for bonds through various bonding companies, including a self-inking stamp. It also displays what other extras come with the package and the image of the stamp imprint.

For links to agency websites, visit http://notaries.dos.state.fl.us/notagn97.html

These agencies do not have websites, but the applications can be downloaded here:

Bond Application - Accredited Group Agency, Inc.

Bond Application - RLI Insurance Company

How to describe ID in notarial certificates

Florida law requires that notaries specify in their certificate or jurat the type of identification produced to the notary which the notary relied upon to identify the signer of a document. If the signer is personally known to the notary, the notary need not ask for identification; they simply have to state in their certificate that the signer is personally known. However, most of the time the notary will not be personally acquainted with the signer and will need to see some form of identification. The types of identification which a notary may accept are listed in my previous article on "procedures for all notarial acts".

Most of the time, the identification presented is either a Florida driver license or a Florida ID card. What is the best way to describe the type of identification in the notarial certificate?

The statutes do not address the issue. Many notaries simply put "driver license" or "passport", with no other identifying information. Even more notaries simply put "D/L", to abbreviate "driver license". The governor's office advises against this. Although many notary "signing agents" will tell you that the driver license or identification card number should not be stated in the notarial certificate, the governor's office recommends that you include the state who issued the card and the card number, i.e. the certificate would state "...who produced FL Driver License #K123-456-78-900-0 as identification". This provides proof that the signer did personally appear before the notary and that the notary did inspect the identification.

When stating the full driver license number in the certificate, this poses a question about identity theft, particularly when the document is one that will be recorded in official records (such as a deed or a mortgage). If you keep a journal, which is recommended, you should always record the driver license or ID card number in your journal. Since journals are not public record and constitute private notarial papers, which are confidential under Florida law, there is no fear that the driver license numbers recorded in the journal may be misused. Recording the number in your journal eliminates the need to record the information on the notarized document itself. However, sensitive documents such as wills or powers of attorney, which are frequently contested by family members of the decedent or principal, should always have the ID card number stated in the actual certificate.

The bottom line is, you are never "in the wrong" by putting the driver license number in the certificate, because it is specifically recommended by the governor's office. It comes down to personal preference on the notary's part.

Commissioners of Deeds

A Commissioner of Deeds is an officer appointed and commissioned by the Governor whose function is to take acknowledgments of execution and to administer oaths in a foreign country in connection with a timeshare property located in the State of Florida.

The office of Commissioner of Deeds is a public office that has existed since 1831. The first Commissioners of Deeds for the State of Florida were authorized to “notarize” any document, provided that it was to be used or recorded in Florida. The Governor was also able to appoint commissioners to states within the United States. The powers were similar to those of a Florida Notary Public, except that the notarial acts were performed outside the state of Florida.

In 1997 the powers of a Commissioner of Deeds in Florida were significantly reduced. Currently, Commissioners of Deeds may only "notarize" documents that are related to a timeshare estate located in Florida. CODs are still appointed to a certain country and may only act in that country. Although the statutes only allow appointment to countries outside of the 50 United States, the Governor has appointed CODs to act in the United States outside of the state of Florida, and there are several currently active commissioners appointed as such. With Notaries Public available in all countries, there has been a decrease in need for the services of a Commissioner of Deeds. Therefore, there are very few Commissioners of Deeds in the state of Florida. There are approximately 90 actively-commissioned Commissioners of Deeds for the State of Florida. Most of these commissioners are working under the supervision of a vacation club or timeshare firm, and most commissioners are actively commissioned in more than one country.

If a resident of a foreign country wanted to purchase a timeshare condominium in Florida, the real estate firm in Florida would send a Commissioner of Deeds to the potential purchaser to “notarize” the closing paperwork, such as the mortgage. This would enable the document to be recorded in accordance with Florida law. Another common situation where a commissioner would be used is if an American tourist is abroad and meets with a vacation club representative, and wishes to purchase a timeshare in Florida. Provided that the representative is a Commissioner of Deeds, he or she could “notarize” the potential purchasers' signatures on all necessary paperwork.

Other states such as Texas, Maine, New York, and Kentucky have statutory provisions allowing the governor to appoint Commissioners of Deeds; however, these commissioners are authorized to authenticate any document to be used or recorded in the commissioning state. In addition, none of those four states are actively appointing commissioners. Florida is the only state which restricts the type of documents authorized to be authenticated by a commissioner to documents related to timeshare estates.

The requirements to become a Commissioner of Deeds for the State of Florida are generally the same as to become a notary. However, no bond is required and commissioners are not required to authenticate their acts with an official seal, although most commissioners do use a stamp seal similar to the type notaries use. Commissioners of Deeds are required to complete notarial certificates in the same manner as notaries in Florida. The term of office is four years.

Commission Number vs. Serial Number vs. Notary ID Number

The current Statuory Short Forms of Acknowledgment set forth in section 695.25 of the Florida Statutes requires that the officer taking the acknowledgment affix his name, title/rank, and "serial number" underneath his signature. Florida notaries do not have a "serial number". However, there are two identifying numbers attached to notaries - the commission number and the Notary I.D. number.

Each time a notary renews their commission, they receive a new "commission number". The commission number actually refers to the serial number of the notary's commission certificate. Each certificate gets one commission number. Hence, when a notary amends their commission due to a name change, they are required to return their original, which is voided and replaced with a new commission, with a new commission number. The only time a commission number is repeated on another certificate is if the original certificate has been lost. The commission number is required to appear on the notary's official stamp seal.

The Department of State also assigns each notary a "Notary I.D. Number". Whereas the commission number refers to the actual commission certificate, the "Notary I.D." refers to the notary. Therefore, when renewing your commission, your "Notary I.D." number will remain the same each time. The Notary I.D. is assigned mostly to enable the Governor's office to easily keep track of notaries through their state database. It is not required on the official seal.

The question of what constitutes a "serial number" for the purposes of short form acknowledgment certificates has not been addressed by the governor's office. Does "serial number" refer to the identifying number of the notary, or the notary's commission certificate? In my opinion, the serial number should refer to the Notary I.D. number, as this number identifies the actual notary. However, most notaries are writing their commission number in that space, i.e. the number on the seal. The NNA, which is not at all a definitive authority on Florida notary law, suggests in its Notary Law Primer that "serial number" refers to commission number. However, since that number is already visible on the seal, some notaries prefer to write their Notary I.D. number in that space for additional identification purposes. The notary is not obligated by law to provide any number in that space. The only thing a notary must list underneath their signature is their printed, typed, or stamped name as commissioned.

It therefore boils down to personal preference whether you want to write your commission number or your Notary I.D. number in the space for "serial number" on acknowledgment forms.

Good Resources for Florida Notaries

Governor's Reference Manual for Notaries

Although outdated in some respects, all Florida notaries should read the entire reference manual and learn it thoroughly. This is the official handbook published by the Governor's office.

PDF Copy of Notary Education Course

This is the complete re-printed text of the online Notary Education Course provided by the Governor's office. Most of the information also appears in the official handbook. (You can officially take the course and get a certificate of completion at http://notaries.dos.state.fl.us/education/. Even experienced notaries would benefit from taking this course if they have not previously done so.)

Loose Certificates

This PDF file contains all notarial certificates you may need.

Fillable Certificates (Oath, Acknowledgment, Attested Copy)

These PDF certificates for oaths, acknowledgments, and attested copies can be completed on your computer, printed out and attached to the document.

Forms

Credible Witness Affidavits

Proof of Will form

Fillable Protest and Notice of Dishonor forms with instructions

Quit Claim Deed form

How do I notarize a will?

You should refuse to notarize a will unless it was prepared by an attorney, you are familiar with wills, and the attorney has provided specific instructions. A will that is entirely hand-written by its maker may be a valid "holographic will". However, when a hand-written will is witnessed and/or notarized, this makes it invalid because it is no longer hand-written entirely by the maker.

A proper will made in Florida will have a "Self-proving affidavit" attached, which is a form prescribed by Florida Statute. It requires the notary to take the acknowledgment of the maker of the will (called a "Testator" if male, and a "Testatrix" if female), and to have the two subscribing witnesses swear that the testator/trix executed the will in their presence and identified the instrument as his or her will. "Self-proving affidavits" are only valid if executed at the same time that the testator/trix and witnesses sign the will; therefore the notary would have to be present while all parties sign. The statute also specifically requires that the notary sign and seal the affidavit in the presence of the testator/trix and witnesses, as is required with all acts.

While the "self-proving affidavit" makes the probate process much easier after a person dies, it is not required to make a valid will. According to the Governor's reference manual, you, as a notary, may offer to attach the self-proving affidavit form but you may not explain what it is used for. Since wills are such sensitive documents, you should refer your clients to an attorney if the will is not profesionally drafted.

Are notaries the same as justices of the peace?

No. There are no justices of the peace in Florida, as the office was abolished in the 1970s. Justices of the Peace were, for all practical purposes, judges in small-claims issues and officers of the Court, whereas the functions of a notary are purely ministerial in nature and do not require notaries to make judicial determinations.

Are notaries entitled to style themselves "The Honorable"?

There are no laws governing the use of the title "The Honorable"; however, that title is typically reserved for judges or high-ranking public officials. Notaries are typically not styled "The Honorable".

Are notaries officers of the Court?

No. There is nothing in the Florida statutes or in any Florida case law in which notaries are considered officers of the Court, nor are notaries considered judicial officers. Notaries are commissioned quasi-judicial officers of the state whose duties are ministerial in nature.

What is a marine/maritime protest?

Maritime protests, also called marine protests, unlike regular "protests", are not "duties" of a Florida notary, although because the term "protest" is used, most notaries believe this is something like a regular "protest". In reality, marine protests and regular protests have nothing to do with each other. Whereas a protest is a notarial act, a marine protest is nothing more than an affidavit by a ship’s captain, taken before a notary public. Although rare, there are some notaries who have found the drafting of marine protests a lucrative business.

A maritime protest is simply an affidavit stating the damage which may have occurred to a certain vessel (ship) due to inclimate weather, etc., and that the damage was not caused by the neglect of the captain or ship’s crew. Generally, the affidavit is signed by the "master" of the ship (i.e., the captain), and the first mate or other officer next in command. The maritime protest must be executed within twenty-four hours after its arrival into a Florida port.

These documents are referred to as "protests" because in "the old days", the notary was actually certifying the information contained in the affidavit as opposed to just administering an oath where the captain swore that the statements were true. In this sense, maritime protests were like regular protests, in that it was made on information satisfactory to the notary. However, because you have no personal knowledge or proof of these facts, unless you happen to also be an officer on the vessel, you should decline to set your hand and seal to a document in that form. Instead, you should request that the proper ship officers draft the document as an affidavit and include a jurat in compliance with Florida Statutes.

A proper form would be as follows:

UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF ___________________

BE IT KNOWN by this public instrument of declaration, that on this ______ day of _________________, 20___, before me, the undersigned notary public in and for the State of Florida at Large, personally came and appeared (Name of captain) , master and commander of the ship (Name of ship) , belonging to (Owner of ship) ; also, (Name of first mate) , first mate, who did, upon oath duly administered, severally and solemnly declare and state as follows:

(Insert here the full statement of the ship’s crew relating to the damage which has occurred to the ship and its causes, etc.)

Wherefore, these affiants do protest against all and singular the premises, the aforesaid bad
weather, gales, storms, winds, high seas, accidents, casualties, occurrences, and all loss, damage, and injury sustained thereby or arising therefrom.

(SIGNED) , Master.
(SIGNED) , First Mate.

Thus declared, subscribed and sworn to before me, on the day and year first aforesaid, by (Name of Captain) , who produced _________ as identification, and by (First Mate) , who produced ______________ as identification.

(Signature of Notary Public) (OFFICIAL SEAL)
(Print, type, or stamp commissioned name)

SOURCES
1. Hinch, Frederick M. John’s American Notary and Commissioner of Deeds Manual, Third Edition. Callaghan & Company. Chicago, Il.: 1922. pp. 279-280.
2. Giauque, Florien, A.M., LL.D. A Manual for Notaries Public, Fifth Revised edition. The W.H. Anderson Co. Cincinatti, Oh.: 1922, pp. 262 -264.

What is a proof of execution?

The term "proof of execution" refers to an affidavit by a witness that he or she saw somebody sign a certain document. An example would be where a person executes a deed in the presence of two witnesses but dies before he is able to give his acknowledgment before a notary public. Without such notarization, the deed would be ineligible for public recordation. However, one of the subscribing witnesses to the deed may sign an affidavit before a notary public, in which the witness swears that he saw the grantor (person granting the deed) sign the document and that he did so willingly.

In the unlikely event that one of the witnesses to the original deed was a notary, but did not notarize the deed in his notarial capacity, there is nothing to prevent that notary from notarizing the proof of execution given by the other witness. The Courts have actually stated that a deed attested in that manner is "entitled to more credit as a valid and bona fide instrument", because the notary himself has personal knowledge that the grantor signed the deed (Edwards v. Thom, 25 Fla. 222). In this case, the notary could not "go back" and acknowledge the deed because the deceased grantor would have had to be in the notary's physical presence when the notary signed and sealed the acknowledgment.

"Proof of execution" is not to be used for general notarizations, i.e. you may not notarize a signature on a document if the signer is not in your presence, even if another person swears that they saw the person sign the document. When doing a "proof of execution" you are not notarizing the signature of the original signer; you are only notarizing the signature of the witness who is giving the affidavit.

Can I be both a witness and the notary to a deed or other document?

Yes. The Courts upheld in Edwards v. Thom (25 Fla. 222), that being the notary to a transaction does not render you incompetent as a witness. However, if the pre-printed certificate requires the notary to take the acknowledgment of the witnesses or to swear in the witnesses, the notary may not also serve as a witness because this would cause the notary to notarize his own signature, which is prohibited by Florida law. Particularly with last wills and testaments, both the person making the will and the witnesses are sworn by the notary, therefore the notary could not also serve as a witness to a last will and testament.

If the client only needs me to witness their signature, can I just affix my stamp and signature on the document without any notarial certificate?

No. Witnessing of signatures is not an authorized duty of a notary public, except in correlation with another notarial act. If a customer presents you with a document that has no notarial certificate already printed, you should explain the difference between an acknowledgment and a jurat and ask the customer which one they want you to add. You may then print, type, or stamp the appropriate certificate on the document. If there is no room on the document, you may attach a second page with the appropriate wording. However, if you attach a "loose" certificate, you should notate in the certificate what document the certificate is attached to, to prevent your notarial certificate from being attached to another document.

If I stamp my official seal underneath my signature, does this satisfy the requirement that my commissioned name be printed, typed, or stamped?

Section 117.05(4)(h) of the Florida Statutes requires that a notary must print, type or stamp his or her commissioned name underneath his or her official signature on a notarized document. This requirement is listed separately from the requirement that an official seal be affixed. The official position of the Governor's office is that if you choose to stamp your name underneath your signature, it must be a stamp that contains only your name. This must be done in addition to your official seal.

However, the majority of notaries do not comply with this requirement. Most believe that affixing your seal underneath your signature is sufficient to satisfy both requirement. Of my own personal review of randomly-selected documents, 54% of notaries reviewed attempted to satisfy both requirements by affixing their official seal underneath their signature. Only 39% printed, typed, or stamped (using a separate stamp) the name under the signature.

According to the 1993 edition of the Florida Notary Law Primer (3rd ed.), published by the National Notary Association, effective July 1, 1991, notaries were required to print, type, or stamp their commissioned name underneath their signature on all documents to be recorded. That requirement was extended to all notarized documents effective January 1, 1992. The book states that state officials ensured it was necessary that this be done in addition to affixing the stamp seal in the event the stamp was illegible or not affixed properly.

Of course, one must take into account that the equipment used to record documents was not nearly as high quality as the equipment used by county clerk's today. Rarely does a properly inked seal show up illegible on recorded documents when they are scanned (all clerks now digitally scan documents into the official records rather than microfilm them). I personally have submit a proposed bill to my local representative to abolish this requirement and make other necessary changes to Florida notary law.

As stated above, most notaries do not comply with this requirement. Whether or not you choose to do so is your decision. It must be kept in mind that the purpose of this requirement is to ensure that the notary's name is clearly legible in the event the stamp does not show up on a copied document. By ensuring that your stamp is always well-inked and by using a stamp large enough to be easily read on recorded documents, you most likely do not have to worry about printing, typing or stamping your name under the signature, provided that you do affix your seal underneath your signature in place of the printed name.

Can a notarial certificate contain elements of both a jurat and an acknowledgment, such as "Sworn to, subscribed and acknowledged before me..."?

Never, ever, ever! If you see a certificate like this, you should ask the signer or the document preparer which they want - an oath or an acknowledgment - because the law does not authorize notaries to combine both acts in one certificate. If the signer or document preparer doesn't know, or wants you to do both an oath and an acknowledgment, you should strike out the entire certificate and attach two separate certificates - first, a jurat, and second, an acknowledgment.

You should note that an "acknowledgment under oath" is not the equivalent of a jurat. See my article "What does the phrase "and who did/did not take an oath" mean, and what do I do with it?"

Usage of Notarial Verbage

1. The notary *takes* the acknowledgment; the signer/"acknowledger" *makes* or *gives* the acknowledgment.

2. The notary *takes* an affidavit; the signer/"affiant" *makes* an affidavit.

3. The notary *administers* the oath; the "deponent" *takes* the oath.

Also - in Florida, depositions are not taken *by* notaries; they are taken *BEFORE* notaries. (Fla. R. Civ. P. 1.300). Depositions are typically taken *by* attorneys. The person being sworn is the *deponent*.

Introduction

Welcome to Robert's blog for Florida Notaries Public.

What I will post:
- Topics relating to Florida notary law and procedure
- Interesting notarization stories
- Discussions on complex Florida notary topics

What I will never post:
- Anything related to the "signing agent" profession
- Anything related to loan/modification documents or "signings"
If you want that kind of crap, please go to notaryrotary.com.

This is not a blog for signing agents. It's a blog for Florida notaries who are passionate about being notaries; who have great respect for themselves and the office of notary public; and who have a genuine interest in gaining greater knowledge about notarial procedures in Florida.