REVISED UNIFORM LAW ON NOTARIAL ACTS
SECTION 1. SHORT
TITLE. This [act] may be cited as the Revised
Uniform Law on Notarial Acts.
Comment
This Act is a revision
of the Uniform Law on Notarial Acts as approved by the National Conference of
Commissioners on Uniform State Laws in 1982.
It provides for the
recognition of notarial acts performed in this state, in other states, under
federal authority, and in foreign jurisdictions. It applies to notarial acts whether
performed with regard to tangible or electronic records.
SECTION 2.
DEFINITIONS. In this [act]:
(1) “Acknowledgment” means a
declaration by an individual that the individual has signed a record for the purpose
stated in the record and, if the record is signed in a representative capacity,
that the individual signed the record with proper authority and signed it as
the act of the individual or entity identified in the record.
(2)
“Electronic” means relating to technology having electrical, digital, magnetic,
wireless, optical, electromagnetic, or similar capabilities.
(3) “Electronic signature” means an electronic symbol, sound, or process
attached to or logically associated with a record and executed or adopted by an
individual with the intent to sign the record.
(4) “In a representative capacity”
means acting as:
(A) an authorized
officer, agent, partner, trustee, or other representative for a person other
than an individual;
(B) a public officer,
personal representative, guardian, or other representative, in the capacity stated
in a record;
(C) an attorney in fact
for a principal; or
(D) an authorized
representative of another in any other capacity.
(5) “Notarial act” means an act,
whether performed with respect to a tangible or electronic record, that a
notarial officer may perform under the law of this state. The term includes taking an acknowledgment,
administering an oath or affirmation, taking a verification on oath or
affirmation, witnessing or attesting a signature, certifying or attesting a
copy, and noting a protest of a negotiable instrument.
(6) “Notarial officer” means a
notary public or other officer authorized to perform a notarial act.
(7)
“Notary public” means an individual commissioned to perform a notarial act by
the [commissioning officer or agency].
(8) “Official stamp” means a physical
image affixed to or embossed on a tangible record or an electronic image
attached to or logically associated with an electronic record.
(9)
“Person” means an individual, corporation, business trust, statutory trust,
estate, trust, partnership, limited liability company, association, joint
venture, public corporation, government or governmental subdivision, agency, or
instrumentality, or any other legal or commercial entity.
(10)
“Record” means information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in perceivable form.
(11) “Sign” means, with present
intent to authenticate or adopt a record:
(A) to execute or adopt
a tangible symbol; or
(B) to attach to or
logically associate with the record an electronic symbol, sound, or
process.
(12) “Signature” means a tangible
symbol or an electronic signature that evidences the signing of a record.
(13) “Stamping device” means:
(A)
a physical device capable of affixing to or embossing on a tangible record an
official stamp; or
(B)
an electronic device or process capable of attaching to or logically
associating with an electronic record an official stamp.
(14)
“State” means a state of the United States, the District of Columbia, Puerto
Rico, the United States Virgin Islands, or any territory or insular possession
subject to the jurisdiction of the United States.
(15) “Verification on oath or affirmation” means a
declaration, made by an individual on oath or affirmation, that a statement in
a record is true.
Comment
(1) “Acknowledgement.” An
acknowledgement is a common form of notarial act in which an individual declares
to a notarial officer that the individual has executed or signed the record for
the purpose or purposes stated in the record.
The declaration is made in the presence of the notarial officer. See Coast
to Coast Demolition and Crushing, Inc. v. Real Equity Pursuit, LLC, 226
P.3d 605, 608 (Nev. 2010).
It is a common
practice for the acknowledging individual to sign the record in the presence of
the notarial officer. However, actually signing
the record in the presence of the notarial office is not necessary as long as
the individual declares, while in the presence of the officer at the that time
the acknowledgement is made, that the signature already on the record is, in
fact, the signature of the individual.
If the record is
signed by an individual in a representative capacity, the individual also declares
to the notarial officer that the individual has proper authority to execute the
record on behalf of the principal (see Section 2(4)).
(2) “Electronic.” The adjective electronic is used to refer to
electrical, digital, magnetic, wireless, optical, electromagnetic, and similar
technologies. Electronic technologies are
capable of generating, transmitting, or storing information in an intangible
format that may subsequently be retrieved and viewed in a perceivable
format.
As with the
Uniform Electronic Transactions Act, the term “electronic” is descriptive and
its reach is not intended to be limited to technologies that are technically or
purely electronic in nature (see UETA §2, Comment 4). Rather, it is intended to be a collective
term and applies to all “similar” technologies that involve the generation,
transmittal, or storage of information in an intangible format.
Electromagnetic
technologies that generate, transmit, and store information in intangible
formats are electronic in nature. Thus, for
example, the typical computer hard drive is a device that stores information
electronically. Optical technologies that
generate, transmit, or store information in intangible formats are also included
within the meaning of the term. Although
some aspects of optical technologies may not be truly electronic in nature, they
are considered to be electronic because they create or manipulate information
in an intangible format. Thus, for
example, fiber optic cable is a means of transmitting information electronically.
The listing of specific technologies in
this Section is not intended to be static or limited to those created or in use
at the time of the adoption of this Act. As electronic technologies continue to develop,
even if they involve competencies other than those listed, they are also included
in this definition if they perform the
function of generating, transmitting, or storing information in an intangible
format from which the
information may subsequently be retrieved and viewed in a perceivable format.
The
term “electronic” in this Act has the same meaning as it has in UETA
§2(5), ESign §106(2), and URPERA §2(2).
(3)
“Electronic signature.” An
electronic signature is any electronic symbol, sound, or process that is
attached to, or logically associated with, an electronic record by an
individual with the intent to sign the record.
An electronic signature on an electronic record is one that accomplishes
the same purpose as a traditional “wet” or pen and ink signature on a tangible
record; it associates an individual with an electronic record for the purpose
of signing or executing the record. The
technology that may be used for an electronic signature includes all the technologies
that are encompassed within the definition of the term “electronic.” Whether an individual in fact attaches an electronic
signature to an electronic record with the intent to sign it is a question of fact
to be determined in each case.
The term is similar
to the definition of that term as used in UETA §2(8), ESign §106(5), and URPERA
§2(4).
(4) “In a representative capacity.”
The term “in a representative capacity” refers to the role in which an
individual signs a record or makes a statement with respect to which a notarial
act is performed. Specifically, it
indicates that the individual who signs a record or makes the statement is
doing so as a representative of another person, a principal, and not on the
individual’s own behalf. A
representative with proper authority binds the principal as if the principal
signed the record. The authority to
perform an act in a representative capacity may be derived from the position
the individual holds (e.g. corporate officer) or from a specific grant of
authority to the individual (e.g. attorney in fact). Whether a person is authorized to act in a
representative capacity is a fact to be determined under the agency law of the state.
In this Act, the
term is used Section 2(1) and in the short form acknowledgement provided in Section
19(2).
(5) “Notarial act.” The term
“notarial act” encompasses any notarial act whether authorized in this Act or by
other law of this state (see also Section 4(a)). This subsection lists those notarial acts
specifically authorized in this Act. The
listed notarial acts include taking an acknowledgement, administering an oath
or affirmation, taking a verification upon an oath or affirmation, witnessing
or attesting a signature, certifying or attesting a copy of a record, and
noting a protest of a negotiable instrument.
This
Act applies to notarial acts regardless of whether they are performed with
respect to a tangible record, such as paper, or with respect to an electronic
record. Other Uniform Laws, including
UETA, ESign, and URPERA, specifically authorize the creation, transfer, storage,
and recording of electronic records just as other law has traditionally allowed
for records on tangible media. This Act
specifically authorizes notarial acts to be performed with respect to
electronic records.
(6) “Notarial officer.” The term
“notarial officer” includes notaries public as well as other individuals having
the authority to perform notarial acts under other state or federal law or the
law of a foreign state. Thus, for
example, judges, clerks, and deputy clerks are notarial officers (see Sections
10(a)(2), 11(a)(2), and 12(a)(1)). Similarly,
in some states, attorneys at law, by the fact that they are attorneys at law, are
also notarial officers (see Section 10(a)(3)).
Also, an individual designated a notarizing officer by the United States
Department of State for performing notarial acts overseas is also a notarial
officer for that purpose (see Section 12(a)(3)). Other persons, whether by state law, federal
law, or the law of a foreign state, may also be notarial officers (see generally
Sections 10 through 13.)
Many of the
provisions of this Act apply broadly to all notarial officers regardless of the
source of their authority. However, some
provisions, such as those in Sections 15 through 18, and Sections 20 through 24,
apply only to notaries public.
(7) “Notary public.” A “notary
public” is an individual who is issued a commission as a notary public by the commissioning
officer or agency pursuant Sections 20 through 22. A notary public does not include those
individuals, such as judges and clerks of court, who are authorized to perform
notarial acts under other law or as a part of the official duties of an office or
position they hold.
(8) “Official stamp.” The term
“official stamp” refers to an image containing specified information that a
notarial officer attaches to or associates with a certificate of notarial act,
which is itself on, attached to, or associated with a record. The contents and characteristics of the
“official stamp” are set forth in Section 15(a).
On a tangible record,
the image is a physical one appropriately located on, or attached to, the certificate
of notarial act. It may be applied to
the surface of the certificate, as with a rubber stamp and ink, or it may be
applied by compression or embossment, as with a seal. On an electronic record, the image is in an electronic
format and attached to, or logically associated with, the electronic
certificate of notarial act. Being an electronic
image, the image must be viewed through a device such as a computer monitor or printed
out in order to be humanly perceivable.
An “official stamp”
is to be distinguished from the device by which the image is affixed on, attached
to, or associated with a certificate of notarial act; that device is identified
as a “stamping device” and is defined Section 2(13).
(9) “Person.” The word “person” is broadly defined to
include all persons, whether human individuals or corporate, associational, or
governmental entities. When the definition
of a “person” is intended to be limited to a human entity, the word
“individual” is used in this Act rather than the word “person.” The definition of “person” is the standard
definition for that term as used in other acts adopted by the National
Conference of Commissioners on Uniform State Laws.
(10) “Record.” A “record” consists of information
stored on a medium, whether the medium be a tangible one or an electronic one. The traditional tangible medium has been
paper on which information is inscribed by writing, typing, printing, or other similar
means. The information is humanly perceivable
by reading it directly from the paper on which it is inscribed.
An electronic
medium is one on which information is stored electronically. The information is humanly perceivable only by
means of a device that interprets the electronic information in the record and
makes it readable. For example, electronic
information may be stored on a hard disk and it may be retrieved and read in a humanly
perceivable form on a computer monitor or a paper printout.
Traditionally,
especially if the tangible medium is paper, a record has been referred to as a
“document.” In this Act, the word
“record” replaces the word “document” and includes information regardless of whether
the medium is tangible or electronic. The
definition of the word “record” in this Act is the same as the definition of
that word in UETA §2(13) and ESign §106(9).
It also is the same as the definition of the word “document” as used in
URPERA §2(1).
(11) “Sign” and “Signature.” Subsections
(11) and (12) of this Act define the related words “sign” and “signature.” An individual may “sign” his or her name to a
record either on a tangible medium or an electronic medium as long as the
individual has the present intent to authenticate or adopt the record so signed. The verb “sign” includes other forms of the
verb, such as “signing.” Except as
provided in Section 9, an individual must personally perform the act of signing
a record.
A symbol located
on, or associated with, a tangible or electronic record that is the result of
the signing process is an individual’s “signature.” The usual symbol an individual selects to use
as the individual’s signature is the individual’s given name. If, instead of using the individual’s given
name, however, an individual uses an alternative symbol as the individual’s signature,
such as an “X,” the individual may affix that symbol to the record as the
individual’s signature.
(12)
“Stamping device.” A “stamping device” is the means by which an
official stamp is affixed to, embossed on, or associated with, the certificate
of notarial act in a record. With a
traditional paper medium, for example, the stamping device may be a rubber
device that uses ink to impose a stamp on the paper. It may also be a device that compresses or
embosses the paper and applies an impression seal.
In an electronic
format, the stamping device is an electronic process or technology that associates
unique information identifying the notarial officer with the certificate of
notarial act that is affixed to, or associated with, an electronic record. The means of identifying the notarial officer
may, for example, be a security card, a password, encryption device, or other
system that allows access to an electronic process that associates the
officer’s unique information with the certificate of notarial act on an
electronic record. The electronic
process may be located on, for example, a desktop or laptop computer, a
portable electronic device such as a Blackberry or iPhone, or a secure website
on the Internet. The means of
identifying the notarial officer and the electronic process are collectively
the stamping device. The result,
although attached to, or associated with, an electronic certificate of notarial
act, will be perceivable only by means of a device such as a computer monitor
that is capable of presenting it in a perceivable format.
(13) “State.” The word “state”
includes any state of the United States, the District of Columbia, the United
States Virgin Islands, and any territory or insular possession subject to the
jurisdiction of the United States. This
definition is the standard definition for that word as used in other acts
adopted by the National Conference of Commissioners on Uniform State Laws.
(14) “Verification upon oath or affirmation.” A “verification upon oath or affirmation” is
a common form of notarial act. It is a
declaration by an individual in which the individual states on oath or
affirmation that the declaration is true.
This declaration is sometimes referred to as an “affidavit” or “jurat.” See Coast to Coast Demolition and Crushing, Inc.
v. Real Equity Pursuit, LLC, 226 P.3d 605, 608 (Nev. 2010).
SECTION 3. APPLICABILITY. This
[act] applies to notarial acts performed on or after [the effective date of
this [act]].
Comment
This Act is not intended to be
retroactive in effect. It applies to
notarial acts performed on or after its effective date. The validity and effect of a notarial act
performed prior to the effective date of this Act is determined by the law in
effect at the time of its performance.
(See also Section 27 regarding application of the Act to a notary public
commission in effect on the effective date of the Act.)
SECTION 4. AUTHORITY
TO PERFORM NOTARIAL ACTS.
(a) A notarial officer may perform
notarial acts authorized by this [act] or by law of this state other than this [act].
(b) A
notarial officer may not perform a notarial act with respect to any record to
which the officer or the officer’s spouse [or civil partner] is a party, or in
which either of them has a direct beneficial interest. A notarial act performed in violation of this subsection is voidable.
Comment
Subsection
(a) is the enabling provision of this Act and grants a notarial officer the
authority to perform notarial acts. It
authorizes a notarial officer to perform notarial acts that are authorized by this
Act as well as those authorized by other law of this State.
When taken in
conjunction with the definition of a notarial act in Section 2(5), subsection (a)
also authorizes a notarial officer to perform notarial acts regardless of the
format of the record. Thus, a notarial
officer may perform notarial acts on tangible records as well as electronic
records. However, before a notary public
may begin to perform notarial acts on electronic records, the notary must
notify the commissioning officer or agency that the notary will be performing
notarial acts with respect to electronic records (see Section 18(b)).
Subsection (b)
prohibits a notarial officer from performing a notarial act in a circumstance
in which performance of that act might create a conflict of interest. It provides that a notarial officer may not
perform a notarial act with respect to any record in which the officer or the
officer’s spouse (or civil partner) is a party.
The prohibition is absolute and clear; there is no need to demonstrate a
direct beneficial interest even though the interest may be obvious. For example, a notarial officer may not take
an acknowledgement of a deed in which the officer or the officer’s spouse is a
grantor or grantee.
In addition, subsection
(b) provides that a notarial officer may not perform a notarial act with
respect to any record in which the officer or the officer’s spouse (or civil
partner) has a direct beneficial interest.
This prohibition depends on whether there is a direct beneficial
interest (see, e.g. Galloway v. Cinello,
188 W. Va. 266, 423 S.E.2d 875 (1992)). For example, a deed by a third party
(perhaps a grandparent) creating a trust in which a child of the notarial
officer is a beneficiary might involve a direct beneficial interest to the
notarial officer, especially if that trust relieves support obligations of the
officer. In that case the officer would
be prohibited from taking the acknowledgement of the deed of trust. While further findings on the facts of the
situation would be necessary to determine whether there is a direct beneficial
interest, a notarial officer should avoid performing a notarial act when doing
so would raise the appearance of an impropriety.
This prohibition
does not, however, extend to situations in which the beneficial interest is
indirect and not derived from the operation of the record or transaction itself.
For example, if the interest received is
merely the payment of a notarial fee, the benefit is indirect and not derived
from the operation of transaction itself (see, e.g. Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11
(2003)). Similarly, a notary
public who is hired to be available to perform notarial acts on multiple
transactions does not derive a beneficial interest from the operation of the
records or transactions themselves. For
example, a notary public may be an employee and the expenses of obtaining and
maintaining the commission may be paid by the notary’s employer. The obvious purpose of such an arrangement,
at least in part, is that the notary public will perform notarial acts in
appropriate situations as needed and requested by the employer. The fact that the notary public’s salary is
paid by the employer does not prevent the notary public from performing
notarial acts when requested by the employer.
Even though the notary receives a salary and the notary’s salary may even
depend on the fact that the notary performs notarial acts for the employer generally,
the notary does not have a direct beneficial interest in the transactions or
one that is derived from the operation of the records or transactions.
If a notarial
officer should perform a notarial act in violation of subsection (b), the notarial
act is not void per se. It may, however,
be voidable in an action brought by a party who is adversely affected by the
officer’s misdeed. See Galloway v. Cinello, 188 W. Va. 266, 423 S.E.2d 875 (1992), where the court stated that the
document was not void per se but was voidable; in making a determination the
court should consider whether an improper benefit was obtained by the notary or
any party to the instrument, as well as whether any harm flowed from the
transaction. But see Estate of McKusick, 629 A.2d 41 (Me.
1993) in which the court questioned the validity of a will because the
affidavit of a witness was made before a notary public who was the spouse of
the witness.
(a) A notarial officer who takes an
acknowledgement of a record shall determine, from personal knowledge or
satisfactory evidence of the identity of the individual, that the individual
appearing before the officer and making the acknowledgment has the identity
claimed and that the signature on the record is the signature of the individual.
(b) A notarial officer who takes a
verification of a statement on oath or affirmation shall determine, from
personal knowledge or satisfactory evidence of the identity of the individual,
that the individual appearing before the officer and making the verification has
the identity claimed and that the signature on the statement verified is the
signature of the individual.
(c) A notarial officer who witnesses
or attests to a signature shall determine, from personal knowledge or
satisfactory evidence of the identity of the individual, that the individual
appearing before the officer and signing the record has the identity claimed.
(d) A notarial officer who certifies
or attests a copy of a record or an item that was copied shall determine that
the proffered copy is a full, true, and accurate transcription or reproduction
of the record or item.
(e) A notarial officer who makes or
notes a protest of a negotiable instrument shall determine the matters set
forth in [Section 3-505(b) of the Uniform Commercial Code].
Comment
“Acknowledgement” – Subsection (a) provides
that when taking an acknowledgement, a notarial officer certifies that: (1) the
individual who is appearing before the officer and acknowledging the record has
the identity claimed, and (2) the signature on the record is the signature of
the individual appearing before the officer.
The notarial officer must identify the individual either through
personal knowledge of the individual or from satisfactory evidence of the
identity of the individual (see Section 7).
It is common
practice for the individual to sign the record in the presence of the notarial
officer. However, actually signing the
record in the presence of the officer is not required as long as the individual
acknowledges to the officer, when the individual appears before the officer, that
the signature already on the record is that of the individual.
“Verification on oath or affirmation” – Subsection
(b) provides that when taking a verification on oath or affirmation, a notarial
officer certifies that: (1) the individual who is appearing before the officer
and making the verification has the identity claimed, and (2) that the
signature on the record is the signature of the individual appearing before the
officer. The notarial officer must identify
the individual either through personal knowledge of the individual or from
satisfactory evidence of the identity of the individual (see Section 7). A verification may be referred to as an
affidavit or a jurat in some jurisdictions.
“Witnessing or attesting a signature” – Subsection (c) provides that when
witnessing or attesting a signature, a notarial officer certifies that: (1) the
individual who is appearing before the officer and signing the record has the
identity claimed, and (2) that the signature on the record is the signature of
the individual appearing before the officer.
The notarial officer must identify the individual either through
personal knowledge of the individual or from satisfactory evidence of the
identity of the individual (see Section 7).
Witnessing or
attesting a signature differs from taking an acknowledgement in that there is
no declaration that the record is signed for the purposes stated in the record
and differs from a verification on oath or affirmation in that the individual
is not verifying a statement in the record as being true. It is merely a witnessing of the signature of
an identified individual.
“Certifies or attests a copy” –
Subsection (d) provides that when certifying or attesting a copy of a
record or item, a notarial officer certifies that: (1) the officer has compared
the copy with the original record or item, and (2) has determined that the copy
is a full, true, and accurate transcription or reproduction of the original
record or item.
Certifying or
attesting of a copy is usually done if it is necessary to produce a copy of a record
when the original is in an archive or other collection of records and the archived
record cannot be removed. In many cases,
however, the custodian of the official archive or collection may also be
empowered to issue an officially certified copy. When an officially certified copy by the
custodian of the archive is available, it is official evidence of the state of
the public archive or collection, and it may be better evidence of the original
record than a copy certified by a notarial officer.
“Make or note a protest of a negotiable
instrument” – Subsection (e) provides that a notarial officer may make or
note a protest of a negotiable instrument under UCC §3‑505(b). A protest is an official certificate of
dishonor of a negotiable instrument. UCC
§3-505(b) confers the authority to make or take a protest on “a United States
consul or vice consul, or a notary public or other person authorized to
administer oaths by the law of the place where dishonor occurs.” In the United States a protest of a
negotiable instrument may not be needed as evidence of dishonor (see UCC §3-505(a);
see also UCC §3-503). A protest may be
necessary, however, on international drafts governed
by law of a foreign state (see UCC §3- 505, Official Comment). This subsection is designed to insure that
there is no doubt as to the authority or a notary public of this state or under
federal authority to make or note a protest of a negotiable instrument when
appropriate under the Uniform Commercial Code.
SECTION 6. PERSONAL
APPEARANCE REQUIRED. If a
notarial act relates to a statement made in or a signature executed on a record,
the individual making the statement or executing the signature shall appear personally
before the notarial officer.
Comment
This Section expressly
requires that when an individual is making a statement or executing a record
with regard to which a notarial act will be performed by a notarial officer,
the individual must appear before the officer to make the statement or execute
the record. Thus, an individual who is
acknowledging a record or verifying a statement on oath or affirmation before a
notarial officer, or an individual whose signature is being witnessed or
attested by a notarial officer, must appear before the officer to perform the
specified function. See Vancura v. Katris, 907 N.E.2d 814, 391
Ill. App. 3d 350 (2009) in which an employer was found liable when an employee
who was a notary public performed notarial acts without the individual signing
the instrument personally appearing before the officer.
To provide assurance
to persons relying on the system of notarial acts authorized by this Act, notarial
officers must take reasonable steps to assure the integrity of the system. It is by personal appearance before the
notarial officer that the individual making a statement or executing a record may
be properly identified by the notarial officer (see Section 7). It is also
by personal appearance before the notarial officer that the officer may be
satisfied that (1) the individual is competent and has the capacity to execute
the record, and (2) the individual’s signature is knowingly and voluntarily
made (see Section 8(a)).
Personal appearance does not include an “appearance”
by video technology, even if the video is “live” or synchronous. Nor does it include an “appearance” by audio
technology, such as a telephone. Those
methods do not provide sufficient opportunity for the notarial officer to
identify the individual fully and properly; nor do they allow the officer
sufficient opportunity to evaluate whether the individual has the competency or
capacity to execute the record or whether the record is knowingly and
voluntarily made.
(a) A notarial officer has personal
knowledge of the identity of an individual appearing before the officer if the individual
is personally known to the officer through dealings sufficient to provide
reasonable certainty that the individual has the identity claimed.
(b) A notarial officer has
satisfactory evidence of the identity of an individual appearing before the
officer if the officer can identify the individual:
(1)
by means of:
(A) a passport,
driver’s license, or government issued non-driver identification card that is currently
valid or expired not more than [three years] before performance of the notarial
act; or
(B)
another form of government identification issued to an individual that is
currently valid or expired not more than [three years] before performance of
the notarial act, contains a photograph
of the individual or the individual’s signature, and is satisfactory to the officer;
or
(2) by a
verification on oath or affirmation of a credible witness personally appearing
before the officer and known to the officer or whom the officer can identify on
the basis of a passport, driver’s license, or government issued
non-driver identification card that is currently valid or expired not more than
[three years] before performance of the notarial act.
(c) A notarial officer may require
an individual to provide additional information or identification credentials
necessary to assure the officer of the identity of the individual.
Comment
Section
5, above, requires a notarial officer to determine, either from personal
knowledge or satisfactory evidence, that the individual for whom the officer
will perform a notarial act has the identity claimed. Section 7 specifies the means by which the
notarial officer is to determine that identity.
Subsection 7(a) defines when a notarial officer has personal knowledge
of an individual’s identity. Subsection
7(b) defines when a notarial officer has satisfactory evidence of an
individual’s identity.
Subsection
(a) states that the notarial officer has personal knowledge of the identity of
an individual only if the officer personally knows the individual through prior
dealings. The prior dealings may be
business dealings or personal dealings. Business
dealings might simply be the performance of prior notarial acts for the
individual. They may also arise because
the notarial officer engaged in prior business transactions with the
individual. Personal dealings might
exist because the notarial officer is a friend or colleague of the individual. They might exist if an individual works in
the same office, school, or building; even if the dealings with the individual
are not business in nature, they may be personal. Regardless of whether the prior dealings are
business or personal, they must be sufficient to provide the notarial officer
with information that is adequate to identify the individual without the need
to view any identification credentials or require any other means of
identification.
Subsection
(b) describes two methods by which a notarial officer may obtain satisfactory
evidence of the identity of the individual even though the officer has no prior
dealings with that individual. One method
of identification is based on an identification credential issued to the
individual (subsection (b)(1)). The
other method of identification is based on an oath or affirmation of a credible
witness as to the identity of the individual (subsection (b)(2)).
Subsection
(b)(1)(A) allows a notarial officer to identify an individual by means of a
passport, driver’s license, or government issued non-driver identification card. The passport may the issued by the United
States or by a foreign state. A United
States passport includes both a traditional passport book and the more recent
passport card as well as any other form of passport the United States may issue. A driver’s license may be issued by a state
government, the federal government, or by a tribal, pueblo, or similar
authority. A government issued
non-driver identification card is a card issued by many states to a person as a
substitute means of identification for a driver’s license. It may be issued to an individual who is not
qualified to obtain a driver’s license or it may be issued in lieu of a
driver’s license to an individual who is qualified to obtain a driver’s
license.
Although the
notarial officer might usually expect the identification credential to be
currently in force, this provision recognizes that even though an expired
credential would not be effective for its primary purpose (e.g. as a license
permitting the individual to drive an automobile), it may used for a period of
up to [three years] after its expiration as a means for identifying an
individual. As long as it provides the
necessary information for identifying the individual, its identification
function is satisfied. This subsection
does, however, put a specific outside limit of [three years] beyond the
expiration of the credential for its use for identification purposes.
Subsection
(b)(1)(B) recognizes that some individuals may not have a passport, driver’s
license, or even a government issued non-driver identification card that is either
currently valid or not expired by more than [three years]. This subsection allows the notarial officer
to base the officer’s identification of the individual on another form of
government issued identification as long as that form of identification contains
a photograph of the individual or the individual’s signature as a means by
which the individual can be associated with the credential. This form of credential may include, for
example, a military identification.
However, this subsection also makes it clear that this alternative form
of identification must be satisfactory to the notarial officer. If the officer is not satisfied with the
identification that the credential provides, the officer may refuse to accept
it as sufficient identification.
Subsection
(b)(2) recognizes that an individual may require the performance of a notarial
act even though that individual is not known to a notarial officer and does not
have one of the identification credentials listed in subsection (b)(1), or at
least the individual does not have the identification credential currently
available. This provision allows a
notarial officer to identify an individual through an oath or affirmation of a
credible witness personally appearing before the officer. The credible witness must either be (1)
personally known to the officer, or (2) identified to the officer by means of the
witness’ passport, driver’s license, or government issued non-driver
identification as long as the credential has not expired more than [three
years] before the performance of the notarial act. If the identity of an individual is verified
by a properly identified credible witness, it is established by satisfactory
evidence.
The meaning of
the term “personally known” in subsection (b)(2) is the same as in subsection
(a); the meanings of the terms “passport,” “driver’s license,” and “government
issued non-driver identification” in subsection (b)(2) are the same as in
subsection (b)(1)(A). Subsection (b)(2)
does not allow for the identification of the credible witness by means of an alternative
form of identification as is provided in subsection (b)(1)(B) for the
identification of the individual for whom the notarial act is performed. Subsection (b)(2) also does not allow the
identity of a witness to be based on an oath or affirmation of yet another
witness; such a process would lead to a spiraling “witness to the
witness.”
Subsection
(c) recognizes that, even if a specified identification credential is
presented, a notarial officer may, in some cases, be uncertain as to the identity
of the individual. For example, the
identification credential may be defaced or have defects that make legibility
difficult, or there may be changes in the physical appearance of the individual
that may not be reflected in the image on the identification credential. If the notarial officer is uncertain as to
the identity of the individual (whether the individual for whom the notarial
act is performed or credible witness for that individual), the officer may
require the individual to provide additional information or identification in
order to assure the officer as to the identity of the individual.
(a)
A notarial officer may refuse to perform a notarial act if the officer is not
satisfied that:
(1)
the individual executing the record is competent or has the capacity to execute
the record; or
(2)
the individual’s signature is knowingly and voluntarily made.
(b)
Except as prohibited by law other than this [act], a notarial officer may
refuse to perform a notarial act.
Comment
Subsection
(a) allows the notarial officer to refuse to perform a requested notarial act
in either of two circumstances. First, if
the notarial officer is not satisfied as to the competency or capacity of the
individual executing the record, the officer may refuse to perform the notarial
act. Second, if the notarial officer has
concern about whether the individual’s signature was knowingly and voluntarily
made, the officer may refuse to perform the notarial act. Satisfaction as to the competency or capacity
of the individual making the record or with the fact that the signature is
knowingly and voluntarily made are matters within the proper judgment of the
notarial officer.
Subsection
(b) gives the notarial officer the general authority to refuse to perform a notarial
act for any other reason as long as the reason for the refusal is itself not a
violation of other law of this state or the United States. Thus, for example, a notary public may be an
employee whose employer has paid the expenses of obtaining and maintaining the notary
public commission. Their understanding
may be that the notary public will be available to perform notarial acts as
needed by the employer but will not be available to perform them for members of
the public. A notary public under that
arrangement may refuse to perform notarial acts for members of the public.
The subsection
does prohibit, however, the officer from refusing to perform the notarial if
the refusal is a violation of other law.
For example, the notarial officer may not refuse to perform the notarial
act due to discrimination that is prohibited by state or federal law. Indeed, a refusal to perform the notarial act
may also be punishable under the state or federal law.
SECTION 9. SIGNATURE IF
INDIVIDUAL UNABLE TO SIGN. If
an individual is physically unable to sign a record, the individual may direct an
individual other than the notarial officer to sign the individual’s name on the
record. The notarial officer shall
insert “Signature affixed by (insert name of other individual) at the direction
of (insert name of individual)” or words of similar import.
Comment
This
Section recognizes that some individuals may not be personally able to sign a record
because of a physical disability. If an
individual is physically unable to sign the record, this Section allows an
alternate process.
This Section allows
a disabled individual, who is executing a record, to direct an individual other
than the notarial officer to sign the executing individual’s name to the record. It then requires the notarial officer to
insert the quoted language in the record or to insert words of similar import. In effect, the executing individual is
appointing another individual to act as the executing individual’s agent for
the purpose of signing the record.
(a) A notarial act may be performed
in this state by the following individuals:
(1)
a notary public of this state; [or]
(2)
a judge, clerk, or [deputy clerk] of any court of this state[; or]
[(3)
an individual licensed to practice law in this state][; or]
[(4) any other individual
authorized to perform the specific act by the law of this state].
(b) The signature and title of an individual
performing a notarial act in this state are prima facie evidence that the
signature is genuine and that the individual holds the designated title.
(c) The signature and title of a
notarial officer described in subsection [(a)(1) or (2)] [(a)(1), (2), or (3)]
conclusively establish the authority of the officer to perform the notarial
act.
Legislative Note: Subsection (a)(4) recognizes, collectively and in
general terms, the authority of other individuals holding notarial powers authorized
under other law of this state. However, instead
of the nonspecific collective recognition stated in this subsection, it would
be preferable to list in this subsection those individuals or offices and, if
limited, the notarial powers granted to them.
Such a listing would provide a practical reference for persons seeking to
determine whether an individual or holder of an office is authorized to perform
notarial acts in this state. This
reference would be especially valuable if a notarial act performed in this
state is to be recognized in another state under Section 11.
Comment
Subsection
(a) lists the individuals who are entitled to serve as notarial officers and
perform notarial acts in this state. A notary public as well as a judge, clerk, or
[deputy clerk] of any court of this state are specifically authorized to
perform notarial acts.
Two
optional groups of authorized individuals are also stated. Under subsection (a)(3), a state may
authorize a duly licensed attorney at law to serve as a notarial officer by
virtue of that individual’s status as a licensed attorney. The attorney’s authority to perform notarial
acts does not depend on the issuance of a notary public commission by the
commissioning officer or agency. This
subsection does not apply, however, if an attorney must obtain a commission as
a notary public from the commissioning officer or agency in order to perform
notarial acts.
Subsection
(a)(4) recognizes the authority of other individuals to perform notarial acts
if the performance of notarial acts by that individual is otherwise authorized by
state law. Usually, the individuals
recognized in this subsection are incumbents in a particular office. For example, recorders or registrars of deeds,
or commissioners of titles, may be authorized to perform notarial acts under
separate legislation. See Legislative
Note, above.
Subsections
(b) and (c) deal with the proof required to substantiate a notarial act. Proof of a notarial officer usually involves
three steps:
1.
Proof that the signature in the certificate of notarial act is that of the individual
identified as a notarial officer;
2.
Proof that the individual named in the certificate of notarial act holds the
designated office as a notarial officer; and
3.
Proof that individuals holding the designated office may perform notarial acts.
Subsection
(b) creates a prima facie presumption that a signature purported to be that of a
notarial officer on the certificate of notarial act is, in fact, that of the
named notarial officer. It also creates a
prima facie presumption that the individual purporting to be a notarial officer
in the certificate of notarial act does, in fact, hold the designated notarial
office. These are the first two steps in
the proof of a notarial act as listed above.
However, being only prima facie evidence that the notarial officer’s
signature is valid and that the officer holds the designated office, they may
be disproved in a legal proceeding upon adequate proof.
Subsection
(c) creates a conclusive presumption that notaries public, judges, clerks and [deputy
clerks] of this state (and attorneys licensed to practice law in this state, if
subsection (a)(3) is adopted) have the authority to perform notarial acts. Since this Act specifically authorizes individuals
holding those offices to perform notarial acts, it is not possible to disprove
that an individual holding one of those offices may perform notarial acts. This is the third step in the proof of a
notarial act as listed above. However,
this per se recognition does not extend beyond a notary public, judge, clerk or
[deputy clerk] (or attorneys licensed to practice law in this state, if
subsection (a)(3) is adopted) of this state.
Authority of other individuals to perform notarial acts must be proven
by reference to other law of this state.
(a) A notarial act performed in
another state has the same effect under the law of this state as if performed
by a notarial officer of this state, if the act performed in that state is
performed by:
(1)
a notary public of that state;
(2) a judge, clerk, or [deputy
clerk] of a court of that state; or
(3) any other individual
authorized by the law of that state to perform notarial acts.
(b) The signature and title of an individual
performing a notarial act in another state are prima facie evidence that the
signature is genuine and that the individual holds the designated title.
(c) The signature and title of a notarial
officer described in subsection (a)(1) or (2) conclusively establish the authority
of the officer to perform the notarial act.
Comment
Subsection
(a) lists the notarial officers of other states whose notarial acts, when performed
in those states, will be recognized in this state. The officers listed in subsections (a)(1) and
(2) are identical to the officers listed in Subsections 10(a)(1) and (2), above. It provides parity of recognition for notarial
acts performed by those officers.
Subsection (a)(3) recognizes notarial acts performed by other notarial
officers of other states, when performed in those states, if they are authorized
by law of the other state. It is
parallel to the recognition of other notarial officers of this state as provided
in subsection 10(a)(4) (and subsection 10(a)(3) if attorneys at law are
authorized to perform notarial acts in the other state by reason of their
offices and not be reason of being issued commissions as notaries public).
Subsection
(b) creates a prima facie presumption that a signature purported to be that of
a notarial officer of the other state on the certificate of notarial act is, in
fact, that of the named notarial officer.
It also creates a prima facie presumption that the individual purporting
to be a notarial officer of the other state in the certificate of notarial act
does, in fact, hold the designated notarial office. These are the first two steps in the proof of
a notarial act as listed in the Comment to Section 10. However, being only prima facie evidence that
the notarial officer’s signature is valid and that the officer holds the
designated office, they may be disproved in a legal proceeding upon adequate
proof.
Subsection
(c) creates a conclusive presumption that notaries public, judges, clerks and
[deputy clerks] of the other state have the authority to perform notarial acts. Since this Act specifically recognizes the
notarial acts of individuals holding those offices, it is not possible to
disprove that an individual holding one of those offices may do so. This abolishes the need for a “clerk’s
certificate” or similar instrument to prove the authority of a notary public,
judge, clerk or [deputy clerk] to perform a notarial act. This is the third step in the proof of a
notarial act as listed in the Comment to Section 10. However, this per se recognition does not extend
beyond a notary public, judge, clerk or [deputy clerk] of the other state. Authority of other individuals to perform notarial
acts may be proven by reference to law of the other state. In addition, other forms of proof of
authority to perform notarial acts, such as a “clerk’s certificate,” are acceptable.
(a) A notarial act performed under
federal law has the same effect under the law of this state as if performed by
a notarial officer of this state, if the act performed under federal law is
performed by:
(1) a judge, clerk, or
deputy clerk of a court;
(2) an individual in
military service or performing duties under the authority of military service who
is authorized to perform notarial acts under federal law;
(3) an individual
designated a notarizing officer by the United States Department of State for
performing notarial acts overseas; or
(4) any other individual
authorized by federal law to perform notarial acts.
(b) The signature and title of an individual
acting under federal authority and performing a notarial act is prima facie
evidence that the signature is genuine and that the individual holds the
designated title.
(c) The signature and title of an
officer described in subsection (a)(1), (2), or (3) conclusively establishes
the authority of the officer to perform the notarial act.
Comment
Some
notarial acts are performed by notarial officers acting under federal authority
or holding office under federal authority.
Section 12 recognizes the notarial acts performed by those officers when
performed in accordance with federal law.
Subsection (a)(1) recognizes the notarial acts performed by judges,
clerks, and deputy clerks under federal law.
It is the federal law parallel to the notarial officers recognized in
subsections 10(a)(2) and 11(a)(2).
Subsection
(a)(2) recognizes the authority of certain individuals to perform notarial acts
while in the military service or under the authority of a military
service. These provisions are currently
codified in 10 U.S.C §1044a (2010). Subsection
(b) of the federal codification provides the following individuals with the
authority to perform notarial acts for the purposes stated in subsection (a) of
the enactment:
(b)
Persons with the powers described in subsection (a) are the following:
(1)
All judge advocates, including reserve judge advocates when not in a duty
status.
(2)
All civilian attorneys serving as legal assistance attorneys.
(3)
All adjutants, assistant adjutants, and personnel adjutants, including reserve
members when not in a duty status.
(4)
All other members of the armed forces, including reserve members when not in a
duty status, who are designated by regulations of the armed forces or by
statute to have those powers.
(5)
For the performance of notarial acts at locations outside the United States,
all employees of a military department or the Coast Guard who are designated by
regulations of the Secretary concerned or by statute to have those powers for
exercise outside the United States.
Subsection
(a)(3) recognizes the authority of an individual who is designated as a
notarizing officer by the United States Department of State for performing
notarial acts overseas. This has been a
traditional function performed by a notarizing officer of the Department of
State. In many parts of the world a
notarial act performed by a notarizing officer of the Department of State may be
the best means to perform a notarial act for records that must be recognized in
the United States. See subsection 13(f) as
to the effect of a consular authentication performed by an individual who is
designated as a notarizing officer by the United States Department of State for
performing notarial acts overseas .
Subsection
(a)(4) provides recognition of the notarial acts performed by other notarial
officers authorized under federal law who are not listed in the prior
subsections. A variety of other federal
officers may be authorized to perform notarial acts, such as wardens of federal
prisons (18 U.S.C. §4004 (2010)).
Subsection
(b) creates a prima facie presumption that the signature purported to be that
of a notarial officer under federal law on the certificate of notarial act is,
in fact, that of the named notarial officer.
It also creates a prima facie presumption that the individual purporting
to be a notarial officer in the certificate of notarial act does, in fact, hold
the designated notarial office under federal law. These are the first two steps in the proof of
a notarial act as listed in the Comment to Section 10. However, being only prima facie evidence that
the notarial officer’s signature is valid and that the officer holds the
designated office, they may be disproved in a legal proceeding upon adequate
proof.
Subsection
(c) creates a conclusive presumption that a federal judge, clerk or deputy
clerk, an individual in the military service or acting under the authority of a
military service, and an individual designated as a notarizing officer by the
Department of State has the authority to perform notarial acts. Since this Act specifically recognizes the
notarial acts of individuals holding those offices, it is not possible to
disprove that an individual holding one of those offices may do so. This is the third step in the proof of a
notarial act as listed in the Comment to Section 10. However, this per se recognition does not
extend beyond a federal judge, clerk or deputy clerk, an individual in the
military service or acting under the authority of a military service, or an
individual designated as a notarizing officer by the Department of State. Authority of other individuals to perform
notarial acts under federal law may be proven by reference to federal law
granting the authority.
(a) In this
section, “foreign state” means a government other than the United States or a
state.
(b) If a notarial act is performed
under authority and in the jurisdiction of a foreign state or constituent unit
of the foreign state or is performed under the authority of a multinational or
international governmental organization, the act has the same effect under the
law of this state as if performed by a notarial officer of this state.
(c) If the title of office and
indication of authority to perform notarial acts in a foreign state appears in
a digest of foreign law or in a list customarily used as a source for that
information, the authority of an officer with that title to perform notarial
acts is conclusively established.
(d) The signature and official stamp
of an individual holding an office described in subsection (c) is prima facie
evidence that the signature is genuine and the individual holds the designated
title.
(e) An apostille in the form
prescribed by the Hague Convention of October 5, 1961, and issued by a foreign
state party to the Convention conclusively establishes that the signature of
the notarial officer is genuine and that the officer holds the indicated
office.
(f) A consular authentication issued
by an individual designated by the United States Department of State as a
notarizing officer for performing notarial acts overseas and attached to the
record with respect to which the notarial act is performed conclusively
establishes that the signature of the notarial officer is genuine and that the
officer holds the indicated office.
Comment
Subsection (a) clarifies that, for purposes
of this Section, a “foreign state” means a foreign country and not a state in
the United States federal system.
Subsection
(b) provides for the recognition of notarial acts performed by notarial
officers acting under the authority and in the jurisdiction of a foreign state
or its constituent units. It also
recognizes the notarial acts performed by notarial officers acting under the
authority of a multinational or international governmental organization. An example of a multinational or
international governmental organization is the United Nations.
Subsection
(c) states that if the title of a notarial office and the authority of a person
in that office to perform notarial acts appear in a digest of foreign laws or in
a list customarily used as a source for that information, the authority of a
notarial officer holding that office to perform the indicated notarial acts is conclusively
established. This is the third step in
the proof of a notarial act as listed in the Comment to Section 10.
Subsections
(d) states that the signature and official stamp of a notarial officer identified
in subsection (c) provides prima facie evidence that (1) the officer’s signature
is genuine, and (2) the officer holds an office with the designated
title. These are the first two steps in
the proof of a notarial act as listed in the Comment to Section 10.
Being only a
prima facie evidence that the notarial officer’s signature is valid and that
the officer holds an office with the designated title, they may be disproved in
a legal proceeding upon adequate proof. If
the validity of a foreign notarial officer’s signature or the fact that the
officer holds an office with the designated title is challenged, ultimate proof
in a judicial proceeding may be expensive and time consuming. Furthermore, the potential of post hoc
challenges may be detrimental to the promotion of international commerce. Therefore, the Act recognizes two means by
which the validity of the notarial officer’s signature and the certainty that
the individual holds a notarial office with the designated title can be
conclusively established: (1) “apostille,” and (2) consular authentication.
Subsection
(e) recognizes an “apostille” as one means of conclusively establishing those
facts. The United States is a party to
an international treaty regarding the authentication of notarial acts performed
on public documents. The treaty is known
as the Hague Convention (“Convention de La Haye du 5 octobre 1961”). Under this treaty, an “apostille” may be
prepared by a competent authority in a foreign state in accordance with the
treaty and stamped on, or attached to the
record. A competent authority is one designated by the foreign state from
which the public document emanates. The
“apostille” may be in the language of the foreign state in which it is issued,
but the words “Apostille (Convention de La Haye, du 5 octobre 1961)” are always
in French. The “apostille” should
conform as closely as possible to the Model annexed to the Convention. The text of the Convention is reproduced in
the annotations to the Federal Rules of Civil Procedure Rule 44.
Subsection (e) carries
out the provisions of Hague Convention and gives effect to an “apostille”
complying with the treaty. It states
that the “apostille” conclusively establishes that: (1) the signature of
the notarial officer on the certificate is genuine, and (2) the officer holds an
office with the indicated title. When
combined with the conclusive presumption established under subsection (c) as to
the authority of a notarial officer with a designated title to perform a
notarial act, all three steps in the proof of a notarial act, as listed in the
Comment to Section 10, are met.
The “apostille” has
the following form, which is set forth in the annotation to Federal Rules of
Civil Procedure Rule 44:
The certificate will be in the form of a
square with sides at least 9 centimetres long:
APOSTILLE
|
|
(Convention de La Haye du 5 octobre 1961)
|
|
1.
|
Country: .........................................
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|
|
|
|
This public document
|
|
|
|
2.
|
has been signed by
......................................................................................................
|
|
3.
|
acting in the capacity of
...............................................................................................
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4.
|
bears the seal/stamp of
................................................................................................
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................................................................................................................................
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5.
|
at ..................................................
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|
6.
|
the ....................................................
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7.
|
by .............................................................................................................................
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8.
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No .................................................
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9.
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Seal/stamp:
|
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10.
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Signature:
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................................................................................................................................
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|
Subsection
(f) provides an alternative means by which (1) the fact that the signature of
the notarial officer on the certificate is genuine, and (2) the fact that the
officer held an office with the designated title may be assured. Under it, an individual designated by the
United States Department of State as a notarizing officer for performing
notarial acts overseas may provide that assurance by means of a consular
authentication. A consular authentication
assures that (1) the signature of the foreign notarial officer is valid,
and (2) the officer holds the indicated office.
The consular authentication must be attached to the record with respect
to which the notarial act is performed. When
combined with the conclusive presumption established under subsection (c) as to
the authority of a notarial officer with a designated title to perform a
notarial act, all three steps in the proof of a notarial act, as listed in the
Comment to Section 10, are met.
(a) A notarial act must be evidenced
by a certificate. The certificate must:
(1) be executed contemporaneously
with the performance of the notarial act;
(2) be signed and dated by
the notarial officer and, if the notarial officer is a notary public, be signed
in the same manner as on file with the [commissioning
officer or agency];
(3) identify the
jurisdiction in which the notarial act is performed;
(4) contain the title of
office of the notarial officer; and
(5) indicate the date of
expiration, if any, of the notarial officer’s commission, if the officer is a
notary public.
(b) If a notarial act is performed by
a notary public regarding a tangible record, the notary public’s official stamp
must be affixed to or embossed on the certificate. If a notarial act is performed by a notarial
officer, other than a notary public, regarding a tangible record and the certificate
contains the information specified in subsection (a)(2), (3), and (4), an
official stamp may be affixed to or embossed on the certificate. If the notarial act is performed by a
notarial officer regarding an electronic record and the
certificate contains the information specified in subsection (a)(2), (3), and (4),
an official stamp may be attached to or logically associated with the
certificate.
(c) A certificate of a notarial act
is sufficient if it meets the requirements of subsections (a) and (b) and:
(1) is in a short form
set forth in Section 19;
(2) is in a form
otherwise permitted by the law of this state;
(3) is in a form permitted
by the law applicable in the jurisdiction in which the notarial act was
performed; or
(4) sets forth the
actions of the notarial officer and the actions are sufficient to meet the
requirements of the notarial act as provided in Sections 5, 6, and 7 or law
other than this [act].
(d) By executing a certificate of a
notarial act, a notarial officer certifies that the officer has complied with
the requirements and made the determinations specified in Sections 4, 5, and 6.
(e) A notarial officer may not affix
the officer’s signature to, or logically associate it with, a certificate until
the notarial act has been performed.
(f)
If a notarial act is performed regarding a tangible record, a certificate must
be part of, or securely attached to, the record. If a notarial act is performed regarding an
electronic record, the certificate must be affixed to, or logically associated
with, the electronic record. If the
[commissioning officer or agency] has established standards pursuant to Section
26 for attaching, affixing, or logically associating the certificate, the process
must conform to the standards.
Comment
Subsection
(a) provides that a notarial act must be evidenced by a certificate of notarial
act. It sets out the requirements of
that certificate:
Subsection
(a)(1) – The certificate must be executed contemporaneously with the
performance of a notarial act. The
performance of a notarial act may take some period of time to accomplish,
especially in large transactions with long closings and, for example, the fact
that the certificate is not executed by the notarial officer immediately after
the individual signs and acknowledges a deed should not necessarily demonstrate
a lack of contemporaneous execution.
However, a certificate that is not executed until some days after an
individual signs and acknowledges a deed and the transaction is closed would not
be a contemporaneous execution.
Subsection
(a)(2) – The certificate must be signed and dated by the notarial officer. If the notarial officer is a notary public,
the signature must be signed in the same manner as the signature that is on
file with the commissioning officer or agency.
For example, if a signature on file with the commissioning officer or
agency contains the notary public’s middle initial, the signature on the
certificate must also contain the initial.
Subsection
(a)(3) – The certificate must identify the jurisdiction in which the notarial
act is performed. This is normally done
by identifying the state and county in which the notarial act is performed (see
Section 19, Short Forms). However, the
identification of other jurisdictions may be appropriate, such as when the notarial
act is performed in a foreign state.
Subsection (a)(4)
– The certificate must identify the title of office of the notarial
officer. For example, the office may be
notary public or clerk of court. The notarial
officer may also be an individual in a military service or performing duties
under the authority of a military service, in which case the individual’s rank
or position should be identified.
Subsection (a)(5)
– If the officer is a notary public, the certificate must contain the
expiration date of the notary public’s commission, if any. That expiration date will be part of a notary
public’s official stamp (see Section 15(1)) and the use of the official stamp
will satisfy the requirements of this subsection. However, if a notarial officer is not
required to and does not use an official stamp under subsection (b), the
expiration date must be separately inserted.
Subsection (b) states whether
the certificate of notarial act must contain an official stamp of the notarial
officer.
If the notarial act is performed on a
tangible medium and is performed by a notary public, subsection (b) requires
that the notary public’s official stamp be affixed to or embossed on the certificate
of notarial act.
If the notarial act is performed with regard to
a tangible medium and is performed by a notarial officer other than a notary
public, subsection (b) states that an official stamp may be attached to or
embossed on the certificate of notarial act.
However, although permitted, this subsection does not require that the
notarial officer attach or emboss the officer’s official stamp on the certificate. Whether a notarial officer other than a
notary public is required to use an official stamp and what the contents of
that stamp may be will depend on other law of this state and that law may not
require the use of a stamp or it may specify other contents. Regardless of whether an official stamp is attached
to or embossed on the certificate, the certificate must, at a minimum, contain
the information specified in subsections (a)(2), (3) and (4).
If the notarial act is performed with respect
to an electronic record by a notarial officer, whether a notary public or
otherwise, subsection (b) states that the notarial officer’s official stamp may
be attached to, or associated with, the electronic certificate of notarial act. However, although permitted, this subsection
does not require that a notarial officer’s official stamp be attached to or
logically associated with an electronic certificate. Regardless of whether an official stamp is
attached to or logically associated with an electronic certificate, the electronic
certificate must, at a minimum, contain the information specified in
subsections (a)(2), (3) and (4). These
are the same provisions found in URPERA §3(c), UETA §11, and ESign §101(g).
Subsection (c)
provides that if the certificate of notarial act meets the requirements of
subsections (a) and (b), it may be in (1) the appropriate short form set out in
Section 19, (2) any other form permitted by the law of this state, (3) any
other form permitted by the law of the place where the notarial act is
performed if other than this state, or (4) any form that sets forth the actions
of the notarial officer if those actions meet the requirements of Sections 5,
6, and 7 or law other than this act, whether state or federal. Thus, acknowledgements and other notarial
acts may be in the short forms provided in Section 19 or may in the more prolix
and elaborate traditional forms, if otherwise permitted by law.
Subsection
(d) emphasizes the obligation of the notarial officer to comply with the
requirements of, and to make the determinations required by, Sections 5, 6, and
7. By executing the certificate, the
notarial officer certifies that the officer has done so.
Subsection
(e) provides that the notarial officer may not sign the certificate until the
notarial act has been fully performed (compare N.C. Gen. Stat. §10B-35 (2009)).
Subsection
(f) seeks to assure the unified integrity of the record and the related certificate
of notarial act. With respect to a
notarial act evidenced on a tangible record, this subsection requires that the certificate
must be a part of, or securely attached to, the record. If the certificate is not a part of the
record itself, the means of attaching the certificate to the record are not
specified. However, stapling is a common
means.
Affixing
an electronic certificate to an electronic record or associating it with an
electronic record requires sophisticated technology. There are multiple technologies by which the affixing
or associating may be accomplished and those technologies will undoubtedly
change over time as technologies improve and change. Accordingly, subsection (f) does not adopt
any particular technology or limit the affixing or associating to technologies
that are currently available. Rather, it
provides that the certificate must be affixed to, or logically associated with,
the electronic record in accordance with standards approved by the commissioning
officer or agency. The standards are
left to the determination of the commissioning officer or agency under Section
26 and will depend on the available technology and the degree of security
provided by available technology.
SECTION 15. OFFICIAL STAMP. The official stamp of a notary public must:
(1) include the notary public’s name,
jurisdiction, commission expiration date, if any, and other information
required by the
[commissioning officer or agency]; and
(2) be capable of being copied together
with the record to which it is affixed or attached or with which it is
logically associated.
Comment
This Section
sets forth two requirements for a notary public’s official stamp, whether the
stamp is a physical image attached to, or embossed on, a tangible certificate
of notarial act or an electronic image attached to, or logically associated
with, an electronic certificate of notarial act.
Subsection
(1) provides that the official stamp must state the notary public’s name. Since Subsection 14(a)(2) requires that a
notary public sign the notary’s name as it appears on file with the commissioning
officer or agency, the name of the notary on the official stamp should also
conform with the name on file with the commissioning officer of agency. The official stamp must state the jurisdiction
in which the notary public is commissioned.
The official stamp must set forth the date on which the notary public’s
commission expires, if any. Finally, the
official stamp must include any other information that is required by the commissioning
officer or agency.
Subsection
(2) requires that the official stamp be capable of being copied together with
the record to or with which it is attached or logically associated. Thus, for example, an official stamp that is
affixed with a rubber stamping device and ink must provide a clear image in an
ink that is capable of being copied. An
official stamp that is affixed by embossing must do so in such a way that the
information in the embossment is capable of being copied. An official stamp that is attached to, or
logically associated with, an electronic record must be capable of being copied
by the same technology by which the electronic record is copied.
(a)
A notary public is responsible for the security of the notary public’s stamping
device and may not allow another individual to use the device. On resignation from, or the revocation or
expiration of, the notary public’s commission, or on the expiration of the date
set forth in the stamping device, if any, the notary public shall disable the
stamping device by destroying, defacing, damaging, or erasing it in a manner
that renders it unusable. On the death or
incompetency of a notary public, the notary public’s personal representative or
guardian or any person in possession of the stamping device shall render it
unusable by destroying, defacing, damaging, or erasing it.
(b) If a notary public’s stamping
device is lost or stolen, the notary public shall notify promptly the commissioning officer or agency on discovering
that the device is lost or stolen.
Comment
In
order to protect and maintain the integrity of notarial acts, it is important
that a notary public’s stamping device be kept secure and out of the hands of other
individuals who might use it fraudulently or erroneously. Accordingly, subsection (a) provides that a notary
public is responsible for maintaining the security of notary’s stamping device. Similarly, it provides that a notary public may
not allow another individual to use the device.
In
order to assure the integrity of the notarial system, the notary public may not
continue to possess the official stamp once the notary is no longer serving as
a notary public. Thus, subsection (a) provides
that upon the resignation of the notary public’s commission, the revocation or
expiration of the notary’s commission, or the expiration of the date set forth
in the stamping device, the notary must disable the device by destroying,
defacing, damaging, or erasing it in a manner that renders it unusable. Similarly, it provides that upon the death or
incompetency of a notary public, the notary public’s personal representative must
render the stamping device unusable by destroying, defacing, damaging, or
erasing it. (Compare N.C. Gen. Stat. §10B-36(a)
(2009).)
Subsection
(b) recognizes that if the official stamp is lost or stolen, the possibility of
fraudulent activity or misuse is also raised.
Thus, a notary public is required to notify the commissioning officer or
agency as soon as the notary discovers that the stamp is lost or stolen. The commissioning officer or agency may be
able to take other steps to provide notification that will further protect the
public. (Compare Ariz. Rev. Stat. §41-323
(2010); N.C. Gen. Stat. §10B‑36(c) (2009).)
(a) A notary public, other than an
individual licensed to practice law in this state, shall maintain a journal in
which the notary public chronicles all notarial acts that the notary public performs. The notary public shall retain the journal for
10 years after the performance of the last notarial act chronicled in the
journal.
(b) A journal may be created on a
tangible medium or in an electronic format.
A notary public shall maintain only one journal at a time to chronicle
all notarial acts, whether those notarial acts are performed regarding tangible
or electronic records. If the journal is
maintained on a tangible medium, it must be a permanent, bound register with
numbered pages. If the journal is
maintained in an electronic format, it must be in a permanent, tamper-evident
electronic format complying with the rules of the [commissioning officer or agency].
(c) Entries in a journal must be
made contemporaneously with the performance of the notarial act and contain the
following information:
(1) the date and time of
the notarial act;
(2) a description of the
record, if any, and type of notarial act;
(3) the full name and
address of each individual for whom a notarial act is performed;
(4) if identity of the
individual is based on personal knowledge, a statement to that effect;
(5) if identity of the
individual is based on satisfactory evidence, a brief description of the method
of identification and the identification credential presented, if any, including
the date of issuance and expiration of any identification credential; and
(6) the fee, if any,
charged by the notarial officer.
(d) If a notary public’s journal is
lost or stolen, the notary public promptly shall notify the [commissioning officer or agency] on discovering that the journal is lost or
stolen.
(e) On resignation from, or the
revocation or suspension of, a notary public’s commission, the notary public shall
retain the notary public’s journal in accordance with subsection (a) and inform
the [commissioning officer or agency] where the journal is located.
(f) Instead of personally retaining a
journal as provided in subsections (a) and (e), a current or former notary public
may transmit the journal to the [commissioning officer or agency] [the official
archivist of this state] or a repository approved by the [commissioning officer
or agency].
(g) On the death or incompetency of a current or former notary public,
the notary public’s personal representative or guardian or any person in
possession of the journal shall transmit it to the [commissioning officer or
agency] [the official archivist of this state] or a repository approved by the
[commissioning officer or agency].]
Legislative Note: Although the National Conference of Commissioners on
Uniform State Laws believes that it is important for notaries public to
maintain journals of the notarial acts that they perform and has incorporated
this Section as part of this uniform law, the adoption of this Section is
optional. It is bracketed to show that
it is optional.
There are two additional
considerations that were not adopted as part of this uniform act that a state
legislature might wish to consider with regard to the journal requirement. Subsection (b) requires that a notary public
maintain only one journal at a time.
Subsection (c) requires that a notary public make the entries into the
journal at the time that a notarial act is performed. This may create a difficulty for a notary
public who performs notarial acts with regard to electronic records and also
performs notarial acts on tangible records.
If a notary maintains an electronic journal (especially if the
technology the notary uses automatically performs electronic journaling), the
notary may have difficulty journaling a notarial act performed on a tangible record
that is away from the computer containing the electronic journal. For example, if a notary’s electronic journal
were installed on a computer maintained in the notary’s office and the notary
were asked to perform a notarial act on a tangible record bedside in a hospital,
the notary might not be able to enter the notarial act into the electronic
journal at the time the notary performs the notarial act. Under this Section, as written, a notary would
either have to maintain a journal on a tangible record or would have to install
the journaling software on a portable computer. As another alternative, an adopting
legislature may wish to allow a notary public to maintain a portable journal on
a tangible record in addition to the regular electronic journal (see Or. Rev.
Stat. §194.152(1) (2010)).
Another alternative that a
legislature might wish to consider is adding a provision to subsection (c)
requiring an individual for whom a notary public performs a notarial act to
sign the journal. This would assure that
the entry in the journal is made at the time of the performance of a notarial
act and that the individual has reviewed the entry made by the notary public (see
Cal. Govt. Code §8206(a)(2)(C) (2010)).
Comment
Creating
and maintaining a journal of the notarial acts that a notary public performs provides
a number of assurances that will protect the integrity of the notarial
system. Among other benefits it helps to
assure, or at least determine whether, a notarial act that is performed in the
name of a particular notary public was indeed performed by that notary. As an ordinary business record the journal may
provide evidence that the act was performed by the notary or, by the absence of
an entry in the journal, it may provide evidence that the act was not performed
by the notary. In that regard, it
provides protection to both the notary and to the public whom the notary
serves. (Cf. Vancura v. Kartis, 907 N.E.2d 814, 391 Ill. App. 3d 350 (2008).)
Subsection (a)
requires a notary public, other than a notary public licensed to practice law
in this state, to maintain a journal of all the notarial acts that the notary performs. A notary
must maintain the journal for at least ten years after the performance of the
last notarial act chronicled in that journal.
For example, if a particular journal volume chronicles a notary public’s
notarial acts for the period from January 1, 2005 to December 31, 2009, the
entire journal volume must be maintained until December 31, 2019 despite the
fact that some entries may be nearly fifteen years old by that date.
The exception
provided in this subsection for attorneys licensed to practice law in this
state applies regardless of whether the attorney is authorized to perform
notarial acts by the fact that the attorney is licensed to practice law (see
Subsection 10(a)(3)) or the attorney must obtain a commission as a notary
public from the commissioning officer or agency.
Subsection
(b) allows a notary public to decide whether to use a traditional journal on a
tangible medium or an electronic journal.
However, the notary may maintain only one active journal at a time. If the notary maintains the journal on a
tangible medium (e.g., paper), the journal must be maintained in a permanent,
bound register with numbered pages. It
may not be in a loose-leaf or similar volume with pages that can be removed or
torn out without evidence of their removal.
If the notary decides to use an electronic journal, the electronic
journal must be maintained in a permanent, tamper-evident electronic format as
prescribed by the regulations of the commissioning officer or agency.
Subsection
(c) provides that a notary public must make the entries in the journal contemporaneously
with the performance of the notarial act.
Because the performance of a notarial act may take some period of time
to accomplish, especially if part of a large transaction with numerous notarial
acts, the fact that the entry in the journal not made immediately after an
individual signs and acknowledges a deed, for example, does not necessarily
demonstrate a lack of contemporaneous entry.
Nevertheless, the entry must be made reasonably promptly and by the end
of the transaction.
Subsection (c) also
lists certain information that must be included in the journal entry for each
notarial act performed. These include: (1) the date and time of the notarial act;
(2) a brief description of the record, if any, and the type of notarial act
performed (e.g., deed with acknowledgement); (3) the full name and address of
each individual for whom the notarial act is performed; (4) if identity of the
individual was based on personal knowledge (see Section 7(a)), a statement to
that effect; (5) if identity of the individual was based on satisfactory
evidence (see Section 7(b), a brief description of the method of identification
(i.e. identification credential or credible witness), and, if an identification
credential was used, the date the credential was issued and its expiration date;
and (6) the fee, if any, charged by the notarial officer (see Cal. Govt. Code §8206
(2010)).
Because
of the importance of journals and their continued maintenance by notaries
public, subsection (d) requires a notary public to notify the commissioning
officer or agency, upon discovery, if the journal is lost or stolen. The reporting of this information to the commissioning
officer or agency not only protects the members of the public whom the notary
has served but also the notary him or herself.
Similarly,
the retention and maintenance of a notary’s journals is important after the
termination of the notary’s commission.
Thus, subsection (e) provides that upon the resignation of a notary public
from the notary’s commission, or the revocation or suspension of the notary’s
commission, the notary must continue to retain the notary’s journals for the
ten year period provided in subsection (a) and provide the commissioning
officer or agency with information about where the journals are located.
Subsection (f) provides
that a current or former notary public may, instead of retaining journals for the
ten year period provided in subsection (a), elect to transmit them to the
[commissioning officer or agency] or [official state archivist] or a repository
approved by the commissioning officer or agency.
Subsection (g) directs
that upon the death of a notary public, the notary’s personal representative, guardian,
or any person in possession of the journals must transmit the journals to the [commissioning
officer or agency] or [official state archivist] or a repository approved by
the commissioning officer or agency.
(a) A notary public may select one
or more tamper evident technologies to perform notarial acts with respect to electronic
records. A person may not require a
notary public to perform a notarial act with respect to an electronic record
with a technology that the notary public has not selected.
(b) Before performing a notarial act
with respect to an electronic record, a notary public shall notify the [commissioning
officer or agency] that the notary public will be performing notarial acts with
respect to electronic records and identify the technology the notary public
intends to use. If the [commissioning
officer or agency] has established standards for approval of technology
pursuant to Section 26, the technology must conform to the standards. If the technology conforms to the standards,
the [commissioning officer or agency] shall approve the use of the technology.
Comment
Subsection (a) provides that a
notary public may elect to perform notarial acts with respect to electronic
records and, for the purpose of performing those notarial acts, may select one
or more technologies. This allows a notary
to use more than one technology in order to accommodate clients using different
technologies to perform their electronic transactions. However, a client of a notary public may not insist
that a notary perform a notarial act with respect to an electronic record with
a technology that the notary does not wish to use.
Any technology
that the notary selects must be a tamper evident technology. A tamper evident technology is one that is
designed to allow a person inspecting an electronic record to determine whether
there has been any tampering with the integrity of a notarial act performed on,
or with regard to, the record or with the attachment or association of the notarial
act with that electronic record.
Subsection
(b) requires that, before first performing notarial acts with respect to
electronic records, a notary public must notify the commissioning officer or
agency that the notary will be performing notarial acts with respect to
electronic records. When a notary provides
a notification to the commissioning officer or agency, the notary must also
identify the technology or technologies that the notary intends to use to
perform the notarial acts.
If, at the time
that a notary public provides the notification to the commissioning officer or
agency, the commissioning officer or agency has established standards for the
approval of technology to be used to perform notarial acts with respect to
electronic records, any technology selected by the notary must conform to those
standards. If the technology conforms to
those standards, the commissioning officer or agency must approve it for use by
the notary.
SECTION 19. SHORT
FORM. The following short form certificates of
notarial acts are sufficient for the purposes indicated, if completed with the
information required by Section 14(a) and (b):
(1)
For an acknowledgment in an individual capacity:
State
of ________________________________________
[County]
of ___________________________________
This record was acknowledged before me
on ________ by ____________________
Date Name(s) of individual(s)
__________________________________
Signature of notarial officer
Stamp
[__________________________________]
Title of office
[My
commission expires: _________]
(2)
For an acknowledgment in a representative capacity:
State
of _________________________________________
[County]
of ______________________________________
This record was
acknowledged before me on ________ by _____________________
Date Name(s) of individual(s)
as
(type of authority, such as officer or trustee) of (name of party on behalf of
whom record was executed.)
__________________________________
Signature of notarial officer
Stamp
[__________________________________]
Title of office
[My
commission expires: _________]
(3)
For a verification on oath or affirmation:
State
of _________________________________________
[County]
of ______________________________________
Signed and sworn to (or affirmed) before
me on ________ by ______________________
Date
Name(s) of individual(s)
making statement
__________________________________
Signature
of notarial officer
Stamp
[__________________________________]
Title of office
[My
commission expires: _________]
(4)
For witnessing or attesting a signature:
State
of _________________________________________
[County]
of ______________________________________
Signed [or attested] before me on ________
by _______________________
Date
Name(s) of individual(s)
__________________________________
Signature
of notarial officer
Stamp
[__________________________________]
Title of office
[My
commission expires: _________]
(5)
For certifying a copy of a record:
State
of _________________________________________
[County]
of ______________________________________
I
certify that this is a true and correct copy of a record in the possession
of ________________________________________.
Dated
___________________________
________________________________
Signature
of notarial officer
Stamp
[__________________________________]
Title of office
[My
commission expires: _________]
Comment
This
Section provides statutory short form certificates of various notarial
acts. These forms are sufficient to
certify a notarial act in this state.
See Section 14(c)(1). Other forms
may also qualify as stated in Section 14(c)(2), (3), and (4).
These
certificates may be used for notarial acts performed on tangible records as
well as those performed with regard to electronic records. They are available for notarial acts
performed by notaries public as well as notarial officers who are not notaries
public. Under Section 14(b), an official
stamp is required on the certificate if the notarial act is performed on a
tangible record by a notary public. Under
Section 14(b), if the notarial act is performed on a tangible record by a
notarial officer other that a notary public or is performed by any notarial
officer on an electronic record, an official stamp is optional, but the
information or acts specified in Section 14(a)(2), (3) and (4) must be
supplied. The short forms provided in
this Section call for the insertion of that information or the performance of
those acts.
The
calls in each of the forms for state and county information refer to the state
and county where the notarial act is performed.
(a) An individual qualified under
subsection (b) may apply to the [commissioning
officer or agency] for a commission as a notary public. The applicant shall comply with, and provide
the information required by, rules established by the [commissioning officer or
agency] and submit the required application fee.
(b) An
applicant for a commission as a notary public must:
(1)
be at least 18 years of age;
(2)
be a citizen or permanent legal resident of the United States;
(3)
be a resident of or have a place of employment or practice in this state;
(4)
be able to read and write English; [and]
(5)
not be disqualified to receive a commission under Section 22[; and
(6) have passed
the examination required under Section 21(a)].
(c) Before
issuance of a commission as a notary public, an applicant for the commission shall
execute an oath of office and submit it to the [commissioning officer or
agency].
[(d)
[Not more than [30] days after] [Before] issuance of a commission as a notary
public, the [notary public][applicant for a commission] shall submit to the
[commissioning officer or agency] an
assurance in the form of a surety bond or its functional equivalent in the
amount of $[_____]. The assurance must
be issued by a surety or other entity licensed or authorized to do business in
this state. The assurance must cover
acts performed during the term of the notary public’s commission and must be in
the form prescribed by the [commissioning officer or agency]. If a notary public violates law with respect
to notaries public in this state, the surety or issuing entity is liable under
the assurance. The surety or issuing
entity shall give [30] days-notice to the [commissioning officer or agency]
before canceling the assurance. The
surety or issuing entity shall notify the [commissioning officer or agency] not
later than [30] days after making a payment to a claimant under the assurance. A notary public may perform notarial acts in
this state only during the period that a valid assurance is on file with the
[commissioning officer or agency].]
(e) On
compliance with subsections [(a), (b), and (c)] [(a), (b), (c), and (d)], the
[commissioning officer or agency] shall issue a notary public commission to an
applicant [for a term of [ ] years].
(f)
A commission to act as a notary public authorizes the notary public to perform
notarial acts. The commission does not provide
a notary public any immunities or benefits conferred by law of this state on
public officials or employees.
Legislative Note: Although the National Conference of Commissioners on
Uniform State Laws believes that it is important for a notary public to post an
assurance in the form of surety bond or its functional equivalent and has
incorporated Section 20(d) as part of this uniform law, the adoption of that
subsection is optional. It is bracketed
to show that it is optional.
The qualifications that an individual
must meet for the issuance of a commission as a notary public under various
state statutes are quite varied. The
requirements listed in subsection (b) are common although not uniform among the
states. They should be considered to be
the minimal requirements for an individual to be entitled to the issuance of a
commission as a notary public. Adopting
states are free to add other provisions, if the legislature so chooses.
Comment
Subsection
(a) provides that an individual qualified under subsection (b) may apply to the
commissioning officer or agency to obtain a commission as a notary public. The subsection applies to an individual
seeking an initial or renewal commission.
It leaves the form of application, the process for applying, and the
timing of the process, as well as other administrative matters to be determined
by the commissioning officer or agency pursuant to authority provided in
Section 26. Although the statutes of
some states specify the process and timing for issuance of a commission in varying
detail (compare Ariz. Rev. Stat. §41-312 (2010); Cal. Govt. Code §8206 (2010); Del.
Code Ann. tit. 29, 4301 (2010)), this Act leaves the determination and
implementation of those provisions to rules adopted by the commissioning
officer or agency.
Subsection
(b) sets out qualifications that an applicant must meet in order to be entitled
to the issuance of a commission as a notary public. As stated in the Legislative Note above, the
qualifications under various state statutes are quite varied. The requirements listed in this subsection
are common although not uniform among the states (compare Ariz. Rev. Stat. §41‑312(E)
(2010)). They are the important
provisions and should be considered to be the minimal requirements for an
individual to be entitled to the issuance of a commission as a notary
public.
Subsection
(c) provides that before an applicant will be issued a commission as a notary
public the applicant must execute and submit an oath of office to the commissioning
officer or agency (compare 5 Me. Rev. Stat. Ann. §82(3-A) (2010)).
Subsection (d),
an optional provision (see Legislative Note, above), provides, alternatively, that
a notary public must submit an assurance in the form of a surety bond or its
functional equivalent to the commissioning officer or agency not more than 30
days after the notary has been issued a commission, or an applicant must submit
the assurance to the commissioning officer or agency before the issuance of the
commission (compare Fla. Stat §117.01(7)(a) (2010); Tex. Govt. Code §406.010(a)
(2010)). An example of an assurance that
is the functional equivalent of a surety bond would be an irrevocable letter of
credit issued by a bank if that letter of credit meets the requirements
established by the commissioning officer or agency under Section 26(a)(6).
The amount of
the assurance is not specified and is left to the state legislature to determine. It is recognized that an assurance that will cover
the full amount of many transactions for which notaries perform notarial acts is
very large and may be prohibitively expensive.
Nevertheless, limited but reasonable assurance amounts will cover the
amount of some ordinary transactions and will provide some, although limited, recovery
in others. Requiring a surety bond or
its functional equivalent will also provide a ceremonial recognition to a
notary that the notary’s function is not meager or trivial.
An assurance
must be issued by a surety or other entity that is licensed in this state. It must be in the form prescribed by the
commissioning officer or agency under Section 26(a)(6). It must cover acts performed by a notary
during the term of the notary’s commission.
A surety or issuing entity will be liable under an assurance if the
notary violates the law of this state with regard to notaries public during the
term of the assurance. A surety or
issuing entity must give the commissioning officer or agency 30 days notice
prior to cancelling a bond or other form of assurance and must notify the
commissioning officer or agency within 30 days after making a payment to a
claimant under a bond or other form of assurance. A notary public may perform notarial acts
only while an assurance is on file with the commissioning officer or agency.
Subsection
(e) provides that upon compliance with the requirements of subsection (a)
through (c), or (a) through (d) if subsection (d) is adopted, the commissioning
officer or agency will issue a commission as a notary public. The term of the commission is to be
determined by the state legislature; the legislature may also determine that
the commission is to be without term.
Subsection
(f) recognizes that a notary public is an individual licensed by the commissioning
officer or agency and not a public official or employee of the state. Accordingly, it provides that a notary does
not have any of the immunities or benefits conferred by the law of this state
on public officials or employees.
[SECTION 21. EXAMINATION
OF NOTARY PUBLIC.
(a) An applicant for a commission who does not hold a
commission as a notary public in this state must pass an examination
administered by the [commissioning officer
or agency] or an entity approved by the [commissioning officer or agency]. The examination must be based on the
course of study described in subsection (b).
(b) The [commissioning officer or
agency] or an entity approved by the [commissioning officer or agency] shall
regularly offer a course of study to applicants who do not hold commissions as notaries
public in this state. The course must
cover the laws, rules, procedures, and ethics relevant to notarial acts.]
Legislative Note: Although the National Conference of
Commissioners on Uniform State Laws believes that requiring an applicant for a
commission as notary public to pass an examination based on a course of study
regarding the law, rules, procedures, and ethics relevant to notarial acts is important
and has incorporated this Section as part of this uniform law, the adoption of
this Section is optional. It is
bracketed to show that it is optional.
Comment
An
increasingly common requirement for the issuance of a commission as notary
public is the applicant’s passage of an examination based on a course of study
relevant to notaries public (compare Neb. Rev. Stat. §64-1-1
(2010)). Professional education enhances
the effectiveness and integrity of the notarial system. The course of study envisioned in this Section
is designed to educate a prospective notary public about the laws, rules,
procedures, and ethics relevant to notarial acts.
Subsection (a) provides
that an applicant for a commission as a notary public who does not currently
hold a commission as a notary public must pass an examination administered by
the commissioning officer or agency or an entity approved by the commissioning
officer or agency. An applicant who does
not currently hold a commission as notary public includes an applicant who never
held a commission as a notary public as well as an applicant who previously
held a commission as a notary public but whose commission has since expired. The examination is to be based on the course
of instruction provided in subsection (b).
The subsection leaves administration of the examination to the
commissioning officer or agency through rules adopted pursuant to Section 26(a)(7)(A).
Subsection (b) provides
that the commissioning officer or agency or an entity approved by the commissioning officer or agency must regularly
offer a course of study to applicants (compare Cal. Govt. Code §8201(a)(3)
(2010)). To achieve the objective of
enhancing the effectiveness and integrity of the notarial system, the education
is designed to educate a prospective notary public in the laws, rules,
procedures, and ethics relevant to notarial acts. The subsection leaves administration of the
course to the commissioning officer or agency through rules adopted pursuant to
Section Section 26(a)(7)(B).
(a) The [commissioning officer or agency] may deny or refuse to renew a notary public commission or may revoke
or suspend a notary public commission for:
(1)
failure to comply with this [act];
(2)
fraudulent, dishonest, or deceitful misstatement or omission in the
application for a commission as a notary public submitted
to the [commissioning officer or agency];
(3)
a conviction, guilty plea, or plea of no contest of the notary public or
applicant to any felony or to a crime involving fraud, dishonesty, or deceit;
(4) a finding against,
or admission of liability by, the applicant or notary public in any legal
proceeding or disciplinary action based on the applicant’s or notary public’s fraud,
dishonesty, or deceit;
(5) failure by the
notary public to discharge any duty or responsibility required of a notarial
officer, whether by this [act], rules of the [commissioning officer or agency], or any federal or state law;
(6)
use of false or misleading advertising by the notary public representing that
the notary public has duties, rights, or privileges that a notary public does
not have; [or]
(7)
violation by the notary public of a rule of the [commissioning
officer or agency] regarding a notary
public[; or] [.]
[(8)
failure of the notary public to maintain an assurance as provided in Section 19(d)[;
or] [.]
[(9)
insert other state specific provisions or reference to other state statutes.]
(b) If an applicant for a commission
as a notary public is denied the commission or a commission is revoked or
suspended, the applicant or notary public is entitled to timely notice and
hearing in accordance with [this state’s administrative procedure act].
(c)
The authority of the [commissioning officer or agency] to deny, suspend, refuse
to renew, or revoke a notary public’s commission does not prevent the
[commissioning officer or agency] or an aggrieved person from seeking and
obtaining other remedies provided by law, whether criminal or civil.
Legislative
Note: Subsection
(a)(9) is an optional provision and allows the legislature either to insert
other specific grounds for the denial, revocation, or suspension of a
commission as a notary public or to insert references to specific statutes
elsewhere in the law of this state providing those grounds.
Comment
Subsection
(a) lists the grounds upon which the commissioning officer or agency may deny,
or refuse to grant or renew, a notary public commission to an applicant or upon
which the commissioning officer or agency may revoke or suspend a commission. The grounds listed for denial or revocation are
similar to those provided in many states (compare Ariz. Rev. Stat. §41‑330(A)
(2010); N.C. Gen. Stat. §10B-5(d) (2010)).
Subsections
(a)(1) to (6) and (8) enumerate specific grounds upon which the commissioning
officer or agency may deny, refuse to grant or renew, or suspend or revoke a
commission. Subsection (a)(7) allows the
commissioning officer or agency to refuse to renew, or to suspend or revoke, a
commission because the notary public has violated rules adopted by the
commissioning officer or agency regarding notaries public.
Although the
grounds for disciplinary action stated in this subsection provide the
commissioning officer or agency with substantial authority to invoke discipline
to protect the public, subsection (9) allows legislatures to add other specific
grounds. See Legislative Note, above.
Because
notaries public deal with financial, personal, and confidential matters for
their clients, trustworthiness and honesty are essential qualities of a
commission holder. Many of the
disciplinary grounds provided in this subsection deal with breaches of those qualities
(compare Cal. Govt. Code §8201.1(a) (2010)). Subsections (a)(2), (3) and (4) specify several
situations in which lack of those qualities, i.e. fraud, dishonesty and
deceitfulness, may arise and upon which a commission may be denied, revoked or
suspended. Subsection (a)(6) allows
disciplinary action if dishonesty or deceitfulness is displayed by the use of
false or misleading advertising. If
optional Section 20(d) is adopted, subsection (a)(8) allows disciplinary action
if a notary public refuses to obtain, has been unable to obtain, or has been
denied, an assurance in the form of a surety bond or its functional equivalent
as required by Section 20(d).
Subsection
(b) states that an applicant who has been denied a commission as a notary
public or a notary public whose commission has been suspended or revoked is
entitled to a timely notice and a hearing.
Such a notice and hearing are likely required by the state’s
administrative procedure act but are restated here for clarity and assurance.
Subsection
(c) provides that just because a commissioning officer or agency has the
authority to deny, refuse to renew, or suspend or revoke a commission does not
prevent additional relief provided by law.
Either the commissioning officer or agency or a person aggrieved by the
action of a notary public may seek appropriate relief, whether the relief is civil
or criminal.
SECTION 23. DATABASE
OF NOTARIES PUBLIC. The [commissioning officer or agency] shall maintain an electronic database of notaries public:
(1) through which a person may
verify the authority of a notary public to perform notarial acts; and
(2) which indicates whether a notary
public has notified the [commissioning officer or agency] that the notary
public will be performing notarial acts on electronic records.
Comment
This Section requires the commissioning
officer or agency to maintain an electronic database of notaries public. The objectives sought by this provision are
twofold. First, it is a disclosure of
information and a means by which a member of the public may verify whether an
individual who claims to be a notary public in fact has a commission as a
notary public. By also requiring that
the database indicate whether a notary public has informed the commissioning
officer or agency that the notary will be performing notarial acts with regard
to electronic records, it provides information to members of the public who are
seeking to find a notary public capable of performing notarial acts with regard
to electronic records.
(a) A
commission as a notary public does not authorize an individual to:
(1) assist persons
in drafting legal records, give legal advice, or otherwise practice law;
(2) act as
an immigration consultant or an expert on immigration matters;
(3) represent
a person in a judicial or administrative proceeding relating to immigration to
the United States, United States citizenship, or related matters; or
(4) receive compensation for performing any of the
activities listed in this subsection.
(b) A notary public may
not engage in false or deceptive advertising.
(c) A notary public may not use of the term “notario”
or “notario publico”.
(d) A notary public,
other than an attorney licensed to practice law in this state, may not advertise
or represent that the notary public may assist persons in drafting legal records,
give legal advice, or otherwise practice law.
If a notary public, who is not an attorney licensed to practice law in
this state, in any manner advertises or represents that the notary public
offers notarial services, whether orally or in writing, including broadcast
media, print media, and the Internet, the notary public shall include the
following statement, or an alternate statement authorized or required by the [commissioning
officer or agency], in the advertisement or representation, prominently and in each
language used in the advertisement or representation: “I am not an attorney
licensed to practice law in this state.
I am not allowed to draft legal records, give advice on legal matters,
including immigration, nor charge a fee in regard to those activities”. If the form of advertisement or
representation is not broadcast media, print media, or the Internet, and does
not permit the inclusion of the statement required by this subsection owing to
size, it must be prominently displayed or provided at the place of performance
of the notarial act before the notarial act is performed.
(e) Except as otherwise
allowed by law, a notary public may not withhold access to or possession of any
original record provided by a person that seeks performance of a notarial act
by the notary public.
Comment
In general, subsection (a) provides
that a notary public does not have the authority to render legal services
merely by the fact that the individual has a commission as a notary public. It
does recognize, however, that a notary public who is also an attorney at law licensed
to practice law in this state may, by the fact that he or she is a licensed
attorney, provide those legal services.
Subsection
(a) lists four specific activities prohibited to notaries public:
(1) A notary public
may not assist persons by drafting legal records or giving legal advice; more
generally a notary public may not practice law (compare Colo. Rev. Stat §12‑55‑110.3(3)(b)(I)
(2010)).
(2) A
notary public may not act as an immigration consultant or an expert on
immigration matters (compare Colo. Rev. Stat §12-55-110.3(3)(a) (2010)).
(3) A notary
public may not represent a person in any legal or administrative proceedings
relating to immigration, United States citizenship or related matters (compare
Colo. Rev. Stat §12-55-110.3(3)(b)(III) (2010)). Subsections (a)(2) and (3) specifically
reference immigration matters because many immigrants, especially those from
civil law countries, are familiar with the civil law office of “notario
publico” or “notario.” A holder of that
civil law office may have the authority to provide immigration advice or
assistance in the foreign country. Because
of the similarity in the names of the offices, an immigrant from a civil law
country may believe that a notary public is authorized to provide the same
assistance in this country. Confusion on
the part of the client, however, should not be a reason for a notary public to
attempt to provide that assistance. This
subsection clearly prohibits a notary public from providing the
assistance. See also subsection (c) for
further requirements in this regard.
(4) Since a
notary public may not perform the above listed activities, a notary public may
not receive or collect compensation for performing or attempting to perform those
activities (compare Colo. Rev. Stat §12-55-110.3(3)(b)(II)-(III)) (2010)).
Subsections (b), (c), and (d) attempt
to reduce or eliminate misleading or deceptive advertising by notaries public.
Subsection (b) directly and simply prohibits
a notary public from engaging in false or misleading advertising. This prohibition includes the false or
misleading advertising more specifically described in this Section as well as
other forms of false or misleading advertising prohibited by other law.
Subsection (c) prohibits a notary
public from using the term “notario publico”
or “notario” in the notary’s advertising, title, or informational
material. As described above, many
immigrants from civil law countries are familiar with the civil law office of
“notario publico” or “notario,” a holder of which may have the authority to
draft legal records or provide legal advice, including advice on
immigration. To prevent notaries public from
taking advantage of the similarity of title by using the term “notario
publico” or “notario,” this subsection
prohibits any advertising using either of those titles (compare Colo. Rev. Stat
§12-55-110.3(3)(b)(V) (2010)).
Subsection (d) prohibits a notary public,
who is not also an attorney licensed to practice law in this state, from
advertising that the notary may draft legal records, provide legal advice, or
otherwise practice law. In addition to
that prohibition, it makes two specific requirements in any advertising or
representation that the notary uses:
(1) Any
advertising or representation by the notary must include a specific disclaimer
as to the notary’s authority to practice law, to provide legal services, or to collect
a fee for those activities. The
disclaimer must be provided regardless of whether the advertising is written or
oral, or a combination of the two. Included
among the situations when that disclaimer must be provided are advertising or
representations made on broadcast media (e.g. television and radio), print
media (e.g. newspapers, newsletters, and magazines), and the Internet (e.g. web
pages and banner ads). If the
advertising or representation is not made on broadcast media, print media, or
the Internet, and if the inclusion of the disclaimer is not possible due to the
small size of the advertisement or representation (e.g. business card), the
disclaimer must be prominently displayed or provided at the place of performance
of the notarial act, including any off-premises locale at which the notary
performs a notarial act.
(2) The
disclaimer must be provided in each language used in the advertisement or
representation. To make sure that any
advertising aimed at individuals who are not fluent in English or for whom
English is a second language, this subsection requires that the disclaimer must
be in each language used in the advertisement or representation. For example, as noted above, immigrants from
civil law countries may have experience with the office of “notario publico” or
“notario” and may erroneously believe that a notary public has powers similar
to those of a “notario publico” or “notario” (compare Ariz. Rev. Stat. §41-329(A)
(2010) ).
SECTION 25.
VALIDITY OF NOTARIAL ACTS. Except
as otherwise provided in this [act], the failure of a notarial officer to
perform the duties or meet the requirements specified in this [act] does not
invalidate a notarial act performed by the notarial officer. The validity of a notarial act under this [act]
does not prevent an aggrieved party from seeking to invalidate the record or
transaction that is the subject the notarial act based on other law of this
state other than this act or the United States.
Comment
This
Section makes clear that, except as otherwise provided in this Act, the failure
of a notarial officer to perform the duties or to meet the requirements of this
act does not invalidate the notarial act performed by the notarial
officer. For example, a notarial act
performed by a notary public whose assurance or surety bond may have expired or
been cancelled is not invalidated.
However, this provision only applies to a person who is a notarial
officer. The Section does not legitimate
a notarial act attempted to be performed by a person who does not have the
authority to perform the act. For
example, an individual who does not have a valid commission as a notary public
cannot perform notarial acts and any attempted notarial act would be invalid.
Despite
the fact that a notarial act may be valid, the underlying record or transaction
may be invalid and may be set aside in appropriate legal proceedings. For example, the underlying record may be the
product of fraud, whether performed by the notarial officer or by a third
person. In accordance with other law of
this state, an action may be brought to invalidate or set aside the record and
obtain restitution and other relief.
SECTION 26. RULES.
(a) The
[commissioning officer
or agency] may adopt rules to implement this
[act]. Rules adopted regarding the
performance of notarial acts with respect to electronic records must not
require, or accord greater legal status or effect to, the implementation or
application of a specific technology or technical specification. The rules
may:
(1) prescribe the manner of
performing notarial acts regarding tangible and electronic records;
(2) include provisions to ensure
that any change to or tampering with a record bearing a certificate of a
notarial act is self-evident;
(3) include provisions to ensure
integrity in the creation, transmittal, storage, or authentication of
electronic records or signatures;
(4) prescribe the process of
granting or revoking a notary public commission and assuring the
trustworthiness of an individual holding a commission as notary public; [and]
(5) include provisions to prevent fraud
or mistake in the performance of notarial acts; [and]
[(6) establish the process for
approving and accepting surety bonds and other forms of assurance under Section
20(d)][; and]
[(7) provide
for the administration of:
(A) the examination of individuals
applying for a commission as a notary public under Section 21(a); and
(B) the course of study to be
offered to new applicants for a commission as a notary public under Section 21(b)].
(b) In adopting,
amending, or repealing rules about notarial acts with respect to electronic
records, the [commissioning officer or agency] shall consider, so far as is consistent with this [act]:
(1) the most recent standards
promulgated by national bodies, such as the National Association of Secretaries
of State;
(2) standards, practices, and
customs of other jurisdictions that substantially enact this [act]; and
(3) the views of interested persons
and governmental officials and entities.
Comment
Subsection (a) is comprehensive
authority for the commissioning officer or agency to adopt rules to implement
this Act. Any rules adopted with respect
to the performance of notarial acts on electronic records must be technology
neutral, that is they may not require or favor one technology or technical
specification over another. This is the
same requirement provided in ESign, 15 U.S.C. Ch. 96, §102(a)(2)(ii) (2010) and
the language used in this regard is substantially the same as that used in
ESign.
Subsection (a)(1) authorizes rules that
prescribe the manner of performing notarial acts, whether regarding tangible or
electronic records. The provisions of this
Act itself were not intended to specify all the possible requirements or
procedures that now or in the future may be appropriate for performing notarial
acts. Thus, it allows the commissioning
officer or agency to adopt rules to further implement the Act
Subsection (a)(2) authorizes rules that will
ensure that any change to, or tampering with, a record bearing a notarial act will
be self evident. Such a procedure
will allow an individual inspecting the record to determine whether there has
been any tampering with the integrity of a notarial act performed on, or with
regard to, a record or with the attachment or association of a certificate of
notarial act with the record. This provision applies both to notarial acts
performed on tangible records and notarial acts performed with respect to electronic
records. Regarding tangible records,
this would allow a rule, for example, that requires a certain method of attaching
the certificate to the record so that the removal or addition of a page would
be readily discernable. With regard to
electronic records, this would allow a rule, for example, that requires the
technology or process used provide a means of testing to determine whether
there has been any change to the electronic certificate or record. Note, however, that such a requirement must
be technology neutral and may not require or favor one particular technology or
technical specification. See subsection
(a), above.
Subsection (a)(3) authorizes rules that will
ensure integrity in the creation, transmittal, storage, or authentication of
electronic records or signatures. This
would allow a rule, for example, that requires that a certain level or degree
of security be achieved in attaching an electronic certificate of notarial act
to, or associating it with, an electronic record, and in its transmission or
storage. Once again, the requirement
must be technology neutral. See
subsection (a), above.
Subsection (a)(4) authorizes rules for granting
and revoking commissions and assuring the trustworthiness of individuals
holding a commission. As stated in the
Comment to Section 20, that Section leaves the form of application, the
process for applying, the timing of the process, and other administrative
matters to be determined by the commissioning officer or agency. This Section authorizes the commissioning
officer or agency to adopt a rule, for example, that implements a method by
which the prior history of an applicant for a commission could be reviewed with
regard to the applicant’s trustworthiness.
Subsection (a)(5) authorizes the adoption of
rules that will prevent fraud or mistake in the performance of notarial
acts. It would authorize the adoption of
a rule, for example, that specifies what additional information should be
provided in order to guide notaries public under Section 7(c) regarding
additional information to identify an individual for whom a notarial act will
be performed.
Subsection (a)(6) allows
the commissioning officer or agency to adopt rules regarding the approval and
acceptance of surety bonds and other forms of assurance if Section 20(d) is
adopted by the legislature.
Subsection (a)(7)
authorizes the commissioning officer or agency to adopt rules to implement and
administer the examination of applicants for notary public commissions if
Section 21 is adopted by the legislature.
The rules may also administer the provision of a course of study for
applicants for a commission as well as the process of selecting and approving
of an entity to offer the course.
Subsection (b) directs
the commissioning officer or agency, when adopting, amending, or repealing
rules regarding notarial acts on electronic records, to consider, so far as is consistent
with this Act, the most recent standards promulgated by national bodies such as
the National Association of Secretaries of State and also to consider the
standards, practices, and customs of other jurisdictions that substantially adopt
this Act. The purposes of this provision
are to bring to the commissioning officer or agency the best information
available on the issues to be decided and to encourage uniformity of those
provisions among the various states.
SECTION 27. NOTARY
PUBLIC COMMISSION IN EFFECT. A commission as a notary public in effect on
the [effective date of this [act]] continues until its date of expiration. A notary public who applies to renew a notary
public commission after the effective date of this [act] shall comply with this
[act]. A notary public, in performing
notarial acts after the [effective date of this [act]], shall comply with this
[act] and is subject to refusal to renew the notary public’s commission or
revocation or suspension of the notary public’s commission under this [act].
Comment
This Section states that an individual who
has a commission as a notary public that is in effect on the date of the adoption
of this Act may retain that notary commission until the scheduled date of
expiration, if any. Other than as may
apply to the length of an existing commission, however, the provisions of the
law previously in effect do not carry over after the adoption of this Act. Thus, after the effective date of this Act,
a notary is subject to the provisions of this Act with respect to a refusal to
renew the commission or a revocation or suspension of the commission. This Act is also applicable to all notarial
acts performed after its effective date regardless of whether the commission
predated or postdated the effective date of this Act.
SECTION 28.
UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this uniform
act, consideration must be given to the need to promote uniformity of the law
with respect to its subject matter among states that enact it.
Comment
This provision seeks to encourage construction that will
maintain uniformity among the various states adopting the Act.
SECTION 29.
RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This
[act] modifies, limits, and supersedes the federal Electronic Signatures
in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does
not modify, limit, or supersede Section 101(c) of that act,15 U.S.C. Section
7001(c), or authorize electronic delivery of any of the notices described in
Section 103(b) of that act, 15 U.S.C. Section 7003(b).
Comment
This section responds to the specific
language of the Electronic Signatures in Global and
National
Commerce Act and is designed to avoid preemption of state law under that federal
legislation.
SECTION 30. REPEALS. The following are repealed:
(1) [The Uniform Acknowledgement Act (As Amended)].
(2) [The Uniform Recognition of Acknowledgments Act].
(3) [The Uniform Law on Notarial
Acts].
Comment
This Section lists laws that this act supervenes.
SECTION 31. EFFECTIVE DATE. This [act] takes effect ….
Comment
This is the standard effective date provision for uniform
laws.
