Personal appearance is at the heart of the notarial act. Without it, notarizations couldnt be trusted to protect the public from fraud. But in certain situations, the law provides for two very narrow and strictly controlled exceptions to personal appearance: notarization through an attorney-in-fact and notarization through proof of execution by a subscribing witness.
While these are both legitimate alternatives in some cases for handling a notarization for an absent signer, proceed with caution. Because others are signing in the place of the original person named in the document, these types of notarizations have a higher risk of fraud. The Notary Public Code of Professional Responsibility offers guidelines for these types of situations.
Attorney-In-Fact
In this scenario, the Notary is actually notarizing the signature of a representative (the attorney-in-fact) authorized to act on behalf of the absent individual named in the document (also known as the principal). The personal appearance rule applies to the attorney-in-fact, who must personally appear before the Notary.
A person who is appointed as attorney-in-fact for another individual has the authority to sign the principals name and have this signature notarized without the principal being present.
A careful, conscientious Notary following the new Standard of Care will ask to see the power of attorney document that designates the attorney-in-fact and confirm that it authorizes her to act on behalf of the signer. If the person appearing refuses to provide such documents, it could give the Notary grounds to refuse notarization, particularly if the refusal raises suspicions as to the attorney-in-facts legitimacy.
Subscribing Witness
A proof of execution by a subscribing witness is an even narrower and more strictly enforced exception. The subscribing witness proves the documents signing by swearing or affirming before a Notary that the witness watched another person sign the document.
By signing, the subscribing witness confirms the authenticity of the principal signers signature, which also appears on the document. Most, but not all, states accept such a proof as equivalent to direct notarization of the principals signature. However, those states that allow subscribing witnesses usually limit their use to certain types of documents and very specialized circumstances, such as if the original signer is out of the country or incapacitated. If you are unsure about your states requirements, you can check with your Secretary of State, or you can consult the NNAs Notary Law Primer for your state. NNA members also can call the Notary Hotline at (888) 876-0827.
