Wednesday, January 20, 2010

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.

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