The only publication that provides specialized news, information and resources for Notary professionals involved in international trade and cross-border issues.
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The Ins And Outs Of ‘Representative Capacity’
Notarial wording — whether preprinted on a document or as loose certificates — often lists a signer's title, such as "John Smith, President of ABC Inc." This designation is called the signer's "representative capacity," and notarizations with this designation need to be handled with care. That wording on an acknowledgment or jurat means you are “certifying” that John Smith is the President of ABC Inc., and you have no way of verifying such representative capacity.
In California Notaries are prohibited from certifying capacity. If the wording of an out-of-state certificate includes the signer's capacity, replace it with a loose certificate that does not mention the client's title or role.
In other states, when you encounter paperwork that lists capacity in a company and your signer doesn't have proof of that, you still can notarize for the person as long as the notarial language in the certificate makes no such assertion.
Signers can write their name and anything else after it without the Notary requiring proof. All the Notary is doing is verifying identity. You're not vouching for or certifying capacity, and the notarial certificate will reflect that.
Be Wary Of Incomplete Documents
Incomplete documents have great potential for fraudulent misuse, so no official instrument should be notarized unless it is complete and free of blank spaces.
A borrower, for example, might sign an incomplete promissory note trusting the lender to fill it out, and then later find that the lender wrote in twice the amount actually borrowed, or an increased interest rate. In these cases, the document signer could be severely damaged, and the Notary may be required to testify in a subsequent lawsuit.
The prudent Notary will ask a signer to fill in any blank spaces, or have the signer take the document back to the issuing agency for completion, before notarization. If the spaces are inapplicable and intended to be left blank, the signer should be asked to line through each space or write “NA” in the blank space.
If you encounter a signer who doesn’t have a driver’s license, passport or other ID that meets your state’s requirements, an alternative is to use one or more credible identifying witnesses.
Essentially, a credible witness serves as a “human ID card,” who takes an oath or affirmation before the Notary verifying that a signer’s identity is accurate. The ideal credible witness should not have any interest in the document involved in the notarization.
Each state has its own rules regarding use of credible witnesses, and Notaries should always check their state laws for any special requirements. For example, some states require a credible witness to personally know both the signer and Notary, and others allow the use of more than one credible witness during a notarization.
The 'Less But Not More' Rule
One of the most common identity issues occurs when a signer’s name in a document or their signature does not match the name on the identification document presented to you. When this happens, the best way to proceed is to apply the general rule of “less, but not more.” In other words, the name or signature on the document can be less than what appears on the ID, but not more.
For example, if the name on the ID card is “Jane A. Smith.” You may accept the name “Jane Smith,” “J.A. Smith” or “J. Smith” on the document and write that name on the notarial certificate. However, you should not accept “Jane Alice Smith” or “Jane Smith-Burns.”
Notarizing During Business Hours
A Notary’s responsibility is to serve the public impartially, but they also have to follow the rules and policies of their employers. The following important points to remember about notarizing during business hours:
- Clarify with your employer what fees you may charge and what business hours you are required available to perform notarizations.
- Notaries have a duty to serve the public impartially and without discrimination. Generally, you should not refuse lawful requests for notarization from noncustomers during business hours. Some states offer exceptions or nuances to this issue, so check your Notary statutes to be clear about your duty during business hours.
- Your employer may not prohibit you from notarizing outside of business hours or force you to relinquish control of your seal and journal to anyone else.
- State law always takes precedence over employer requests. For example, an employer cannot ask you to ignore state ID requirements when notarizing for clients at your business.
Protecting Your Records
Protecting your signers’ personal information is an essential part of your duty. The following tips will help prevent exposing your constituents to possible identity theft:
- When your employer’s requests conflict with state law and best notarial practices, respectfully insist on following law and best practices.
- Always use a privacy guard with your journal to cover other signers’ information.
- Don’t allow anyone to randomly peruse your journal. Require a specific, written request before showing any entry.
- Don’t leave documents with personal information or an open journal on your desk for others to view, even for a few minutes.
- Keep your journal in a secure and locked location that only you have access to whenever it’s not in use.
- Comply with your company’s document handling and storage policy with every transaction.