‘Gray areas’ that often confuse Notaries

Notaries sometimes encounter ‘gray areas’ that lack clear guidelines in state Notary laws, such as having to question a signer’s mental state or rejecting a suspicious request. When state laws don’t fully address a situation, take these precautions.

If you suspect Notary fraud

There are occasions when something seems off about a notarization, even if the signer has satisfactory proof of identity and seems willing to sign. Your suspicions could be raised by something as simple as the document’s title, or the odd behavior of someone present for the notarization.

State laws and guidelines don’t always provide specific guidance or procedures to evaluate whether a notarization is suspicious or not. But there are a few things to keep in mind to help you determine if something’s amiss:

1. If a signer’s mental state or behavior raises concerns, engage the signer in a casual conversation. If the signer cannot coherently engage in conversation, you may decline to continue with the notarization. If your state laws do not specify otherwise, this should be sufficient to decide whether you can continue the notarization.

   Some states, however, require Notaries to refuse a notarization if the signer does not understand the nature of the transaction requiring a notarial act. For example, Florida law specifies that Notaries may not notarize a signature on a document if it appears that the person is mentally incapable of understanding the nature and effect of the document at the time of notarization (FS 117.107[5]). Florida Notaries are also prohibited from taking an acknowledgment from or administering an oath to a person if the Notary knows the person has been declared mentally incapacitated by a court of competent jurisdiction (FS 117.107[4]). Texas authorizes Notaries to refuse to proceed if the Notary has reasonable grounds to believe that the signer does not have the capacity to understand the contents of the document (1 TAC 87.42[a]). 

2. If you suspect a signer is being forced or coerced by a third party, ask the third party to wait outside the room while you speak to the signer alone. If the signer is still willing and appears to clearly understand the document’s purpose, you may proceed. If the signer is unwilling or seems confused or unclear about the purpose of the document being signed, stop the notarization immediately.

Employer notarization requests that may be illegal or unethical

Another tough situation many Notaries face is employer requests that conflict with what your state allows. Some employers mistakenly assume that if they pay for your commission and tools, they may direct you to ignore your state’s requirements. If your employer makes a request for you as a Notary Public, ask yourself the following questions:

1. Is the request legal in my state? If an employer asks you to do something clearly prohibited by state law — such as ignoring ID requirements, backdating a notarization or falsifying a journal record — your duty is to refuse. But there are other situations that aren’t addressed in every state’s statutes. For example, what if you are told to only notarize documents for customers but not noncustomers during business hours?

   California allows employers who pay for a Notary’s commission and supplies to limit the Notary’s transactions to work-related notarizations during business hours — but only if the Notary agrees to do so.

   Iowa prohibits a Notary’s employer from restricting Notary services based on whether the signer is a customer or noncustomer of the employer.

   Florida, Oklahoma and Texas allow employers to limit the notarizations employees perform at work. However, Arizona, Hawaii, Iowa and Massachusetts do not allow employers to restrict employees from notarizing for non-customers (except for Hawaii Notaries in government service). 
   
   In states where Notary law doesn’t specify guidelines Notary-employee services, an employer has a right to direct a Notary-employee during business hours but cannot make illegal demands.
2. Is the employer’s request taking place during business hours? Some employers have tried to prohibit Notaries from performing notarizations outside of business hours. While in many states an employer may dictate when a Notary-employee may perform notarizations while on the job, outside of business hours, a Notary may perform any lawful, reasonable notarization requested by a member of the public.

Related Articles:

5 tips when notarizing for medical patients

What Notaries need to know about disqualifying interest

Additional Resources:

NNA Hotline