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.
Tuesday, April 13, 2010
Saturday, April 10, 2010
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.
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.
Saturday, March 13, 2010
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 "whodid/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:
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.
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
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.
Friday, March 12, 2010
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.
Tuesday, February 16, 2010
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.
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.
Tuesday, February 9, 2010
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.
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.
Thursday, February 4, 2010
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.
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