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Notary public
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A notary public (or notary or public notary) is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business.
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Encyclopedia
A notary public (or notary or public notary) is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business. A notary's main functions are to administer oaths and affirmations, take affidavits and statutory declarations, witness and authenticate the execution of certain classes of documents, take acknowledgements of deeds and other conveyances, protest notes and bills of exchange, provide notice of foreign drafts, prepare marine protests in cases of damage, provide exemplifications and notarial copies, and perform certain other official acts depending on the jurisdiction. Any such act is known as a notarization. The term notary public only refers to common-law notaries and should not be confused with civil-law notaries.
With the exceptions of Louisiana, Puerto Rico, and Quebec, whose private law is based on civil law, a notary public in the rest of the United States and most of Canada has powers that are far more limited than those of civil-law or other common-law notaries, both of whom are qualified lawyers admitted to the bar: such notaries may be referred to as notaries-at-law or notary lawyers. Therefore, at common law, notarial service is distinct from the practice of law, and giving legal advice and preparing legal instruments is forbidden to lay notaries.
Overview
Notaries are appointed by a government authority, such as a court or lieutenant governor, or by a regulating body often known as a Society or Faculty of Notaries Public. For a notary-at-law, an appointment is usually for life, but lay notaries are commissioned for a briefer term with the possibility of renewal. Appointments and their number for a given notarial district are highly regulated. Since the majority of American notaries are lay persons, however, commissions are not regulated, which is why there are far more notaries in the United States than in other countries (4.5 million
vs. approx. 740 in England and Wales).
For the purposes of authentication, most countries require commercial or personal documents which originate from or are signed in another country to be notarized before they can be used or officially recorded or before they can have any legal effect. To these documents a notary affixes a notarial certificate which attests to the execution of the document, usually by the person who appears before the notary, known as an appearer or constituent. In places where notaries-at-law are the norm, a notary may also draft legal instruments known as notarial acts which have probative value and executory force as would any lawyer's writing. Originals or duplicate originals are then filed and stored in the notary's archives, or protocol.
Notaries in some countries and states are required to undergo special training in the performance of their duties. Many must also first serve as an apprentice before being commissioned or licensed to practice their profession. In many countries, even licensed lawyers, e.g., barristers or solicitors, must follow a prescribed specialized course of study and be mentored for two years before being allowed to practice as a notary. Notaries public in the United States, of which the vast majority are lay people, may not engage in any activities that could be construed as the practice of law unless they are also a qualified attorney.
In civil or bijuridical jurisdictions, such as South Africa, the Office of notary public is a legal profession with educational requirements similar to those for lawyers. Many even have institutes of higher learning who offer degrees in notarial law.
History
For a more detailed account, see Civil-law Notary.
Notaries Public (also called "notaries," "notarial officers," or "public notaries") hold an office which can trace its origins back to ancient Rome, when they were called scribae, tabellius or notarius. Their work would later be transcribed correctly in its entirety by a calligraphus. They are easily the oldest continuing branch of the legal profession worldwide.
The history of Notaries is set out in detail in Chapter 1 of Brooke's Notary (12th edition):
- The office of a public notary is a public office. It has a long and distinguished history. The office has its origin in the civil institutions of ancient Rome. Public officials, called scribae, that is to say, scribes, rose in rank from being mere copiers and transcribers to a learned profession prominent in private and public affairs. Some were permanent officials attached to the Senate and courts of law whose duties were to record public proceedings, transcribe state papers, supply magistrates with legal forms, and register the decrees and judgments of magistrates.
- In the last century of the Republic, probably in the time of Cicero, a new form of shorthand was invented and certain arbitrary marks and signs, called notae, were substituted for words in common use. A writer who adopted the new method was called a notarius. Originally, a notary was one who took down statements in shorthand and wrote them out in the form of memoranda or minutes. Later, the title notarius was applied almost exclusively to registrars attached to high government officials, including provincial governors and secretaries to the Emperor.
- Notwithstanding the collapse of the Western Empire in the 5th century AD, the notary remained a figure of some importance in many parts of continental Europe throughout the Dark Ages. When the civil law experienced its renaissance in mediæval Italy from the 12th century onwards, the notary was established as a central institution of that law, a position which still obtains in countries whose legal systems are derived from the civil law.
- The separate development of the common law in England, free from most of the influences of Roman law, meant that notaries were not introduced into England until later in the 13th and 14th centuries. At first, notaries in England were appointed by the Papal Legate. In 1279 the Archbishop of Canterbury was authorized by the Pope to appoint notaries. Not surprisingly, in those early days, many of the notaries were members of the clergy. In the course of time, members of the clergy ceased to take part in secular business and laymen, especially in towns and trading centres, began to assume the official character and functions of a modern notary.
- The Reformation produced no material change in the position and functions of notaries in England. However, in 1533 the enactment of "the Act Concerning Peter's Pence and Dispensations" (The Ecclesiastical Licenses Act, 1533) terminated the power of the Pope to appoint notaries and vested that power in the King who then devolved it to the Archbishop of Canterbury who in turn devolved it to the Master of the Faculties.
- Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required.
Common law jurisdictions
The duties and functions of notaries public are described in Brooke's Notary on page 19 in these terms:
- Generally speaking, a notary public [...] may be described as an officer of the law [...] whose public office and duty it is to draw, attest or certify under his official seal deeds and other documents, including wills or other testamentary documents, conveyances of real and personal property and powers of attorney; to authenticate such documents under his signature and official seal in such a manner as to render them acceptable, as proof of the matters attested by him, to the judicial or other public authorities in the country where they are to be used, whether by means of issuing a notarial certificate as to the due execution of such documents or by drawing them in the form of public instruments; to keep a protocol containing originals of all instruments which he makes in the public form and to issue authentic copies of such instruments; to administer oaths and declarations for use in proceedings [...] to note or certify transactions relating to negotiable instruments, and to draw up protests or other formal papers relating to occurrences on the voyages of ships and their navigation as well as the carriage of cargo in ships." [Footnotes omitted.]
A notary, in almost all common law jurisdictions other than most of North America (which, it would be remiss to omit, accounts for most of the population of the world under common law), is a practitioner trained in the drafting and execution of legal documents. Notaries traditionally recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required. The functions of notaries specifically include the preparation of certain types of documents (including international contracts, deeds, wills, and powers of attorney) and certification of their due execution, administering of oaths, witnessing affidavits and statutory declarations, certification of copy documents, noting and protesting of bills of exchange, and the preparation of ships' protests.
Documents certified by notaries are sealed with the notary's seal or stamp and are recorded by the notary in a register (also called a "protocol") maintained and permanently kept by him or her. These are known as "notarial acts". In countries subscribing to the Hague Convention Abolishing the Requirement for Legalization for Foreign Public Documents only one further act of certification is required, known as an apostille, and is issued by a government department (usually the Foreign Affairs Department or similar). For other countries an "authentication" or "legalization" must be issued by the Foreign Affairs Ministry of the country from which the document is being sent or the Embassy, Consulate-General, or High Commission of the country to which it is being sent.
Information on individual countries
England and Wales
After the passage of the 1533 Act, which was a direct result of the Reformation in England, all notary appointments were issued directly through the Court of Faculties. The Court of Faculties is attached to the office of the Archbishop of Canterbury.
In England and Wales there are several classes of notaries. English notaries, who like solicitors, barristers, legal executives and licensed conveyancers are also commissioners for oaths, also acquire the same powers as solicitors and other law practitioners, with the exception of the right to represent others before the courts (unless also members of the bar or admitted as a solicitor) once they are licensed or commissioned notaries.
There are also Scrivener notaries, who get their name from the Scriveners' Company; until 1999, when they lost this monopoly, they were the only notaries permitted to practise in the City of London. They used not to have to first qualify as solicitors, but they had knowledge of foreign laws and languages.
Currently to qualify as a Notary Public in England and Wales it is necessary to have earned a law degree or qualified as a solicitor or barrister in the past five years, and then to take a two-year distance-learning course styled the Postgraduate Diploma in Notarial Practice from the University of Cambridge. At the same time, any applicant must also gain practical experience, which would usually be with a solicitor notary. The few who go on to become Scrivener Notaries require further study of a foreign language and foreign law and a two-year mentorship under an active Scrivener notary.
The other notaries in England are either ecclesiastical notaries whose functions are limited to the affairs of the Church of England or other qualified persons who are not trained as solicitors or barristers but satisfy the Master of the Faculties of the Archbishop of Canterbury that they possess an adequate understanding of the law. Both the latter two categories are required to pass examinations set by the Master of Faculties.
The regulation of notaries was modernized in the 1990s as a result of section 57 of the Courts and Legal Services Act 1990.
gives the number of notaries in England and Wales as "about 1000," all but 70 of whom are solicitors.
Notarial services generally include:
- attesting the signature and execution of documents
- authenticating the execution of documents
- authenticating the contents of documents
- administration of oaths and declarations
- drawing up or noting (and extending) protests of happenings to ships, crews and cargoes
- presenting bills of exchange for acceptance and payment, noting and protesting bills in cases of dishonour and preparing acts of honour
- attending upon the drawing up of bonds
- drawing mercantile documents, deeds, sales or purchases of property, and wills in English and (via translation), in foreign languages for use in Britain, the Commonwealth and other foreign countries
- providing documents to deal with the administration of the estate of people who are abroad, or owning property abroad
- authenticating personal documents and information for immigration or emigration purposes, or to apply to marry or to work abroad
- verification of translations from foreign languages to English and vice versa
- taking evidence in England and Wales as a Commissioner for Oaths for foreign courts
- provision of Notarial copies
- preparing and witnessing powers of attorney, corporate records, contracts for use in Britain or overseas
- authenticating company and business documents and transactions
- international domain name transfers
Scotland
Notaries public have existed in Scotland since the 13th century and developed as a distinct element of the Scottish legal profession. Those who wish to practice as a notary must petition the Court of Session. This petition is usually presented at the same time as a petition to practice as a solicitor, but can sometimes be earlier or later. However, to qualify, a notary must earn the Law Society of Scotland's Practising Certificate.
Whilst notaries in Scotland are always solicitors, the profession remains separate in that there are additional rules and regulations governing notaries and it is possible to be a solicitor, but not a notary. They are also separate from notaries in other jurisdictions of the United Kingdom.
The profession is administered by the Council of the Law Society of Scotland under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
In Scotland, the duties and services provided by the Notary are perhaps the weakest in the UK, having declined following the Law Agents (Scotland) Amendment Act 1896 which stipulated only enrolled law agents could become notaries and the Conveyancing (Scotland) Act 1924 which extended notarial execution to law agents. The primary functions of a Scottish notary are:
- oaths, affidavits, and affirmations
- affidavits in undefended divorces and for matrimonial homes
- maritime protests
- execution or certification for foreign jurisdictions, e.g., estates, court actions, powers of attorney, etc.
- notarial execution for the blind or illiterate
- entry of a person to overseas territories
- completion of the documentation required for the registration of a company in certain foreign jurisdictions; and
- drawing for repayment of Bonds of Debenture
Australia
In all Australian States and Territories (except Queensland) notaries public are appointed by the Supreme Court of the relevant State or Territory. Very few have been appointed as a notary for more than one State or Territory.
Queensland, like New Zealand, continues the practice of appointment by the Archbishop of Canterbury acting through the Master of the Faculties.
Many Australian notaries are lawyers but the overall number of lawyers who choose to become a notary is relatively low. For example, in South Australia (a State with a population of 1.5 million), of the over 2,500 lawyers in that state only about 100 are also notaries and most of those do not actively practice as such. In Melbourne, Victoria, in 2002 there were only 66 notaries for a city with a population of 3.5 million and only 90 for the entire state. Compare this with the United States where it has been estimated that there are over 3 million notaries for a nation with a population of 296 million.
As Justice Debelle of the Supreme Court of South Australia said in the case of In The Matter of an Application by Marilyn Reys Bos to be a Public Notary [2003] SASC 320, delivered September 12, 2003, in refusing the application:
Historically there have been some very rare examples of patent attorneys or accountants being appointed, but that now seems to have ceased.
However, there are three significant differences between notaries and other lawyers.
- the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties to a transaction as long as there is no conflict between them, and in such cases it his or her duty is to ensure that the transaction that they conclude is fair to both sides.
- a notary will often need to place and complete a special clause or attach a special page (known as an eschatocol) on or to a document in order to make it valid for use overseas.
- In the case of some documents which are to be used in some foreign countries it may also be necessary to obtain another certificate known either as an "authentication" or an "apostille" (depending on the relevant foreign country) from the Department of Foreign Affairs and Trade.
- a notary identifies himself or herself on documents by the use of his or her individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the genuineness of a document.
Their principal duties include:
- attestation of documents and certification of their due execution for use in Australia and internationally,
- preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use in Australia and internationally,
- administering of oaths for use in Australia and internationally,
- witnessing affidavits, statutory declarations and other documents for use in Australia and internationally,
- certification of copy documents for use Australia and internationally,
- exemplification of official documents for use internationally,
- noting and protesting of bills of exchange, and,
- preparation of ships' protests.
Although it was once usual for Australian notaries to use a red embossed seal it is now common for them to use a red inked stamp that contains the notary's full name and the words "notary public". It is also common for the seal or stamp to include the notary's chosen logo or symbol.
In South Australia and Scotland, it is acceptable for a notary to use the letters "NP" after their name. Thus a South Australian notary may have "John Smith LLB NP" or similar on his business card or letterhead.
Australian notaries do not hold "commissions" which can expire. Generally, once appointed they are authorized to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. In certain States, for example, New South Wales, they cease to be qualified to continue as a Notary once they cease to hold a practising certificate as a legal practitioner.
All Australian jurisdictions also have Justices of the Peace (JP) or Commissioners for Affidavits who can witness affidavits or statutory declarations and certify documents. However they can only do so if the relevant affidavit, statutory declaration or copy document is to be used only in Australia rather than in a foreign country, with the possible exception of a few Commonwealth countries not including the United Kingdom or New Zealand except for very limited purposes. Justices of the Peace (JPs) are (usually) laypersons who have minimal, if any, training (depending on the jurisdiction) but are of proven good character. Therefore a US notary resembles an Australian JP rather than an Australian notary.
New Zealand
Unless excluded under dominion or colonial law, the Master of the Faculties formerly had authority to appoint notaries public in a dominion or colony. The admission of notaries in the Commonwealth was governed specifically by the Public Notaries Act 1833 (UK). The provisions of the Public Notaries Act 1801-43 requiring a notary to be a solicitor did not apply overseas, nor need a notary have a practicing certificate as a solicitor, or from the Court of Faculties.
The usual procedure followed is that the applicant lodges with the Court of Faculties a memorial counter-signed by local merchants, shipping companies, bankers and other persons of substance, which show the local need of a notary and the fitness of the applicant. They also lodge their certificate of admission as a solicitor. A fee accompanies the application. The applicant, with the support of two other notaries public, who vouch that the applicant is well skilled in the affairs of notarial concern, petitions the Master of the Faculties.
The chief consideration for the approval of an application is whether there is sufficient need in the district, regarding the convenience of bankers, ship-owners and merchants. The local society of notaries must be satisfied that a need exists for an additional notary in the area served by the applicant. Priority is given, as a matter of practice, to an applicant within the same firm, as a replacement in the case of the death of a notary, or where a practicing notary is reducing his or her workload because of age or infirmity.
The Master of the Faculties continues to appoint notaries overseas in the exercise of the general authorities granted by s 3 of the Ecclesiastical Licenses Act 1533 (Eng). In these cases he is guided by local considerations of public convenience.
United States
In the United States, a notary public is a person appointed by a state government, e.g., the governor or state secretary, or in some cases the state legislature, and whose primary role is to serve the public as an impartial witness when important documents are signed. Since the notary is a state officer, a notary's duties may vary widely from state to state and in most cases bars a notary from acting outside his or her home state unless they also have a commission there as well.
While the provisions may sound as if it is difficult to become a notary, in most states the main requirements are to fill out a form and pay a fee, and unless there are unusual circumstances the person's application will usually be approved. Some states may have additional requirements such as passing an examination or having taken some class, in most states it's not much more difficult than applying for a library card. The most significant exception to this liberal requirement is that generally a felony conviction will disqualify obtaining a commission or will void an existing one.
A notary is almost always permitted to notarize a document anywhere in the state where their commission is issued. Some states simply issue a commission "at large" meaning no indication is made as to from what county the person's commission was issued, but some states do require the notary include the county of issue of their commission as part of the jurat, or where seals are required, to indicate the county of issue of their commission on the seal. Merely because a state requires indicating the county where the commission was issued does not necessarily mean that the notary is restricted to notarizing documents in that county, although some states may impose this as a requirement.
Some states (Montana, Wyoming, North Dakota, among others) allow a notary who is commissioned in a state bordering that state to also act as a notary in the state if the other allows the same. Thus someone who was commissioned in Montana could notarize documents in Wyoming and North Dakota, and a notary commissioned in Wyoming could notarize documents in Montana, a notary from Wyoming could not notarize documents from North Dakota (or the inverse) unless they had a commission from North Dakota or a state bordering North Dakota that also allowed North Dakota notaries to practice in that state as well.
In some states, only qualified persons can apply for such an appointment, called a commission. Qualifications vary, but states often bar people with certain types of criminal convictions and who do not meet a certain age limit from being appointed, and applicants usually must pass an examination covering notary practices and relevant law. The material for such exams is typically contained in a booklet published by the state. Some states also require a bond or some form of professional liability insurance.
Notaries in the United States are much less closely regulated than notaries in most other common-law countries, typically because U.S. notaries have no legal authority. In the United States, a lay notary may not offer legal advice or prepare documents - except in Louisiana and Puerto Rico - and cannot recommend how a person should sign a document or even what type of notarization is necessary, as these things would constitute unauthorized practice of law. In some states, a notary cannot even certify or attest a copy or facsimile.
The most common notarial acts in the United States are the taking of acknowledgements and oaths. Many professions may require a person to double as a notary public, which is why US court reporters are often notaries as this enables them to swear in witnesses (deponents) when they are taking depositions, and secretaries, bankers, and some lawyers are commonly notaries public. Despite their limited role, some American notaries may also perform a number of far-ranging acts not generally found anywhere else. Depending on the jurisdiction, they may: take depositions, certify any and all petitions (ME), witness third-party absentee ballots (ME), provide no-impediment marriage licenses, solemnize civil marriages (ME, FL, SC), witness the opening of a safe deposit box or safe and take an official inventory of its contents, take a renunciation of dower or inheritance (SC), and so on.
Acknowledgment
"An acknowledgment is a formal [oral] declaration before an authorized public officer. It is made by a person executing [signing] an instrument who states that it was his [or her] free act and deed." That is, the person signed it without undue influence and for the purposes detailed in it. A certificate of acknowledgment is a written statement signed (and in some jurisdictions, sealed) by the notary or other authorized official that serves to prove that the acknowledgment occurred. The form of the certificate varies from jurisdiction to jurisdiction, but will be similar to the following:
On the ....day of .... in the year...before me, the undersigned, personally appeared ...personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Oath, affirmation, and jurat
A jurat is the official written statement by a notary public that he or she has administered and witnessed an oath or affirmation for an oath of office, or on an affidavit - that is, that a person has sworn to or affirmed the truth of information contained in a document, under penalty of perjury, whether that document is a lengthy deposition or a simple statement on an application form. The simplest form of jurat and the oath or affirmation administered by a notary are:
- Jurat: "Sworn (or affirmed) to before me this ........ day of ........, 20 ......"
- Oath: "Do you solemnly swear that the contents of this affidavit subscribed by you is correct and true?"
- Affirmation (for those opposed to swearing oaths): "Do you solemnly, sincerely, and truly declare and affirm that the statements made by you are true and correct?"
Venue
In the U.S., notarial acts normally include what is called a venue or caption, that is, an official listing of the place where a notarization occurred, usually in the form of the state and county and with the abbreviation "ss." for Latin scilicet, "to wit", often in these forms:
State of .......)
)ss:
County of.......)
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State of ________
County of _______, to-wit:
| |
The venue is usually set forth at the beginning of the instrument or at the top of the notary’s certificate. If at the head of the document, it is usually referred to as a caption.
California
The California Secretary of State, Notary Public & Special Filings Section, is responsible for appointing and commissioning qualified persons as notaries public for four-year terms.
Prior to sitting for the notary , one must complete a mandatory six-hour . This required course of study is conducted either in an online, home study, or in-person format via an . Both prospective notaries as well as current notaries seeking reappointment must undergo an "expanded" F.B.I. and California Department of Justice background check.
Various statutes, rules, and regulations govern notaries public. California law sets maximum, but not minimum, fees for services related to notarial acts (e.g., per signature: acknowledgment $10, jurat $10, certified power of attorney $10, et cetera). A finger print (typically the right thumb) may be required in the notary journal based on the transaction in question (e.g., deed, quitclaim deed, deed of trust affecting real property, power of attorney document, et cetera). Documents with blank spaces cannot be notarized (a further anti-fraud measure). California explicitly prohibits notaries from using the literal Spanish translation of their title.
The use of a notary seal is required.
Florida
Florida notaries public are appointed by the Governor to serve a four year term. New applicants and commissioned notary public must be bona fide residents of the State of Florida and first time applicants must complete a mandatory three hour online or in-person Notary Public Education class. Florida state law also requires that a notary public have a bond in the amount of $7,500.00, A bond is required in order to compensate an individual harmed as a result of a breach of duty by the notary. In other words, the bond protects a notary's client (not the notary). Applicants are submitted and paid through a state approved bonding agent. Florida is one of three states (Maine and South Carolina are the others) where a notary public can solemnize the rites of matrimony (perform a marriage ceremony).
Illinois
Notaries public in Illinois are appointed by the Secretary of State for a four year term. Also, residents of a state bordering Illinois (Iowa, Indiana, Kentucky, Missouri, Wisconsin) who work or have a place of business in Illinois can be appointed for a one year term. Notaries must be United States citizens, or aliens lawfully admitted for permanent residence; be able to read and write the English language; be residents of (or employed within) the State of Illinois for at least 30 days; be at least 18 years old; not be convicted of a felony; and not had a notary commission revoked or suspended during the past 10 years.
An applicant for the notary public commission must also post a $5,000 bond, usually with an insurance company and pay an application fee of $10. The application is usually accompanied with an oath of office. If the Secretary of State's office approves the application, the Secretary of State then sends the commission to the clerk of the county where the applicant resides. If the applicant records the commission with the county clerk, he or she then receives the commission. Illinois law prohibits notaries from using the literal Spanish translation in their title and requires them to use a rubber stamp seal for their notarizations. The notary public can then perform his or her duties anywhere in the state, as long as the notary resides (or works or does business) in the county where he or she was appointed.
Louisiana
The Louisiana notary public is a civil law notary with broad powers, as authorized by law, usually reserved for the American style combination "Barrister/Solicitor" lawyers and other legally authorized practitioners in other states. A commissioned notary in Louisiana is a civil law notary that can perform/prepare many civil law notarial acts usually associated with attorneys and other legally authorized practitioners in other states, except represent another person or entity before a court of law for a fee (unless they are also admitted to the bar). Notaries are not allowed to give "legal" advice, but they are allowed to give "notarial" advice - i.e., explain or recommend what documents are needed or required to perform a certain act - and do all things necessary or incidental to the performance of their civil law notarial duties. They can prepare any document a civil law notary can prepare and, if ordered or requested to by a judge, prepare certain notarial legal documents, in accordance with law, to be returned and filed with that court of law.
Maine
Maine notaries public are appointed by the Secretary of State to serve a seven year term. Maine is one of three states (Florida and South Carolina are the others) where a notary public can solemnize the rites of matrimony (perform a marriage ceremony).
Maryland
Maryland notaries public are appointed by the governor on the recommendation of the secretary of state to serve a four year term. New applicants and commissioned notaries public must be bona fide residents of the State of Maryland or work in the state. An application must be approved by a state senator before it is submitted to the secretary of state. The official document of appointment is imprinted with the signatures of the governor and the secretary of state as well as the Great Seal of Maryland. Before exercising the duties of a notary public, an appointee must appear before the clerk of one of Maryland's 24 circuit courts to take an oath of office.
Minnesota
Minnesota notaries public are commissioned by the Governor with the advice and consent of the Senate for a five year term. All commissions expire on January 31 of the fifth year following the year of issue. Citizens and resident aliens over the age of 18 years apply to the Secretary of State for appointment and reappointment. Residents of adjoining counties in adjoining states may also apply for a notary commission in Minnesota. Notaries public have the power to administer all oaths required or authorized to be administered in the state; take and certify all depositions to be used in any of the courts of the state; take and certify all acknowledgments of deeds, mortgages, liens, powers of attorney and other instruments in writing or electronic records; and receive, makeout and record notarial protests. The Secretary of State's website ([https://notary.sos.state.mn.us/]) provides more information about the duties, requirements and appointments of notaries public.
Montana
Montana notaries public are appointed by the Secretary of State and serve a four year term. A Montana notary public has jurisdiction throughout the states of Montana, North Dakota and Wyoming. These states permit notaries from neighboring states to act in the state in the same manner as one from that state under reciprocity, e.g. as long as that state grants notaries from neighboring states to act in their state. [Montana Code 1-5-605]
Nevada
The Secretary of State is charged with the responsibility of appointing notaries by the provisions of Chapter 240 of the Nevada Revised Statutes. Nevada notaries public who are not also practicing attorneys are prohibited by law from using "notario", "notario publico" or any non-English term to describe their services. ()
: administer oaths or affirmations; take acknowledgments; use of subscribing witness; certify copies; and execute jurats or take a verification upon oath or affirmation.
provides more information about duties, requirements, appointments, and classes.
New Jersey
Notaries are commissioned by the State Treasurer for a period of five years. Notaries must also be sworn in by the clerk of the county in which he or she resides. One can become a notary in the state of New Jersey if he or she: (1) is over the age of 18; (2) is a resident of New Jersey OR is regularly employed in New Jersey and lives in an adjoining state; (3) has never been convicted of a crime under the laws of any state or the United States, for an offense involving dishonesty, or a crime of the first or second degree, unless the person has met the requirements of the Rehabilitated Convicted Offenders Act (NJSA 2A:168-1). Notary applications must be endorsed by a .
Notaries in the state of New Jersey serve as impartial witnesses to the signing of documents, attests to the signature on the document, and may also administer oaths and affirmations. Seals are not required; many people prefer them and as a result, most notaries have seals in addition to stamps. Notaries may administer oaths and affirmations to public officials and officers of various organizations. They may also administer oaths and affirmations in order to execute jurats for affidavits/verifications, and to swear in witnesses.
Notaries are prohibited from pre-dating actions; lending notary equipment to someone else (stamps, seals, journals, etc); preparing legal documents or giving legal advice; appearing as a representative of another person in a legal proceeding. Notaries should also refrain from notarizing documents in which they have a personal interest.
By statute, New Jersey attorneys may administer oaths and affirmation, and witness documents.
New York
New York notaries are empowered to administer oaths and affirmations (including oaths of office), to take affidavits and depositions, to receive and certify acknowledgments or proof of deeds, mortgages and powers of attorney and other instruments in writing; to demand acceptance or payment of foreign and inland bills of exchange, promissory notes and obligations in writing, and to protest these (that is, certify them) for non-acceptance or non-payment. They are not empowered to marry couples, their notarization of a will is insufficient to give the will legal force, and they are strictly forbidden to certify "true copies" of documents. Every county clerk's office in New York must have a notary public available to serve the public free of charge.
Pennsylvania
A notary in the Commonwealth of Pennsylvania is empowered to perform seven distinct official acts: take affidavits, verifications, acknowledgments and depositions, certify copies of documents, administer oaths and affirmations, and protest dishonored negotiable instruments. A notary is strictly prohibited from giving legal advice or drafting legal documents such as contracts, mortgages, leases, wills, powers of attorney, liens or bonds. Pennsylvania is one of the few states with a successful Electronic Notarization Initiative. For more information, visit the Secretary of the Commonwealth's website at http://www.dos.state.pa.us/notaries/.
South Carolina
South Carolina notaries public are appointed by the Governor to serve a ten year term. All applicants must first have that application endorsed by a state legislator before submitting their application to the Secretary of State. South Carolina is one of three states (Florida and Maine are the others) where a notary public can solemnize the rites of matrimony (perform a marriage ceremony).
Utah
Utah notaries public are appointed by the Lieutenant Governor to serve a four year term. Utah used to require that impression seals be used, but now it is optional. The seal must be in purple ink.
Virginia
A Virginia notary must either be a resident of Virginia or work in Virginia, and is authorized to acknowledge signatures, take oaths, and certify copies of non-government documents which are not otherwise available, e.g. a notary cannot certify a copy of a birth or death certificate since a certified copy of the document can be obtained from the issuing agency. Changes to the law effective July 1 2008 imposes certain new requirements; while seals are required and they must reproducible. Also, the notary's registration number must appear on any document notarized. Changes to the law effective July 1 2008 will permit notarization of electronic signatures. This has been delayed by the Governor. His office is not appointing any electronic notaries until standards have developed for electronic notarization.
Wyoming
Wyoming notaries public are appointed by the Secretary of State and serve a four year term. A Wyoming notary public has jurisdiction throughout the states of Wyoming and Montana. These states permit notaries from neighboring states to act in the state in the same manner as one from that state under reciprocity, e.g. as long as that state grants notaries from neighboring states to act in their state.
Controversies
A Maryland requirement that to obtain a commission, a notary declare his belief in God, as required by the Maryland Constitution, was found by the United States Supreme Court in Torcaso v. Watkins, to be unconstitutional. Historically, some states required that a notary be a citizen of the United States. However, the U.S. Supreme Court, in the case of Bernal v. Fainter (the Fainter case), declared that to be impermissible.
In the U.S., there are reports of notaries (or people claiming to be notaries) having taken advantage of the differing roles of notaries in common law and civil law jurisdictions to engage in the unauthorized practice of law. The victims of such scams are typically illegal immigrants from civil law countries who need assistance with, for example, their immigration papers and want to avoid hiring an attorney. Confusion often results from the mistaken premise that a notary public in the United States serves the same function as a Notario Publico in Spanish-speaking countries (which are civil law countries, see below). Prosecutions in such cases are difficult, as the victims are often deported and thus unavailable to testify.
Commissioned officers
A Commissioned Officer in the United States Armed Forces is not considered a Notary; however, federal law allows a commissioned officer to certify documents and administer oaths. In addition to the powers granted by the federal government, some states have enacted laws granting notarial powers to commissioned officers.
Canada
Canadian notaries public are very much like their American counterparts, generally restricted to administering oaths, witnessing signatures on affidavits and statutory declarations, providing acknowledgements, certifying true copies, and so forth. However, in British Columbia, a notary public is more like a British or Australian notary (see supra) in that one must also be a practicing lawyer of five years experience and complete a two-year Masters of Arts program in Applied Legal Studies at Simon Fraser University. Appointments are for life and made through the Society of Notaries Public of British Columbia. Furthermore, BC notaries exercize far greater power, able to dispense legal advice and draft public instruments including:
- notarizations
- notarizations/attestations of signatures, affidavits, statutory declarations, certified true copies, letters of invitation for foreign travel, authorization of minor child travel, execution/authentications of international documents, passport application documentation, proof of identity for travel purposes
- real estate law
- home purchase/sale; business purchase/sale; mortgages and refinancing; residential, commercial, & manufactures home transfer of title; restrictive covenants & builder's liens
- wills & estate planning
- preparation and searches of last wills and testaments, living wills, health care directives, representation agreements, powers of attorney
- contract law
- preparation of contracts and agreements, commercial lease and assignments
- easements and right of way
- insurance loss declarations
- marine bills of sale & mortgages
- marine protestations
- personal property security agreements
- purchaser's side for foreclosures
- subdivisions & statutory building schemes
- zoning applications
The notarial profession in Quebec is similar to those of other civil law jurisdictions. Quebec notaries perform functions similar to those of notaries in British Columbia. In order to become a notary in Quebec, one must first complete a bachelor's degree in law. After completing this law degree, would-be notaries attend a one-year training programme, followed by an apprenticeship (called a "stage" in Quebec) before they are entitled to practice the profession.
Iran
Notary Public is a trained lawyer that should pass some special exams to be able to open his office and start his work. Persian meaning of this word is "??????" means head of the office and his assistant called "???????". Both these persons should have Bachelor
degree in law and Master degree in civil-law.
Civil Law jurisdictions
The role undertaken by notaries in civil law countries is much greater than in common law countries. Notaries in the former countries frequently undertake work done in common law countries by the Titles Office and other Government agencies. The qualifications imposed by some countries is much greater. In Greece, for example, a practitioner must choose to be either a solicitor or a notary.
This should be contrasted with the Latin American notario who may be similar to an attorney at law or lawyer. A French notaire, a German and an Italian register wills and other documents, and authenticates transactions of real estate.
In the few United States jurisdictions where trained notaries are allowed (such as Puerto Rico), the practice of these jurists is limited to non-judicial legal advice, property conveyencing and legal drafting.
Notable Notaries
In addition to many well-known notaries public from the world of the law, there are several well-known notaries from other arenas of achievement. Klaus Hergescheimer of Massapequa, NY has the distinction of becoming the first notary to be commissioned in all fifty states (a feat since duplicated several times by others), as well as numerous territories and trust possessions. Richard Nixon confidante Robert Abplanalp was a notary for many years, as were Fawn Hall, teacher and astronaut Christa McAuliffe, and former major league baseball pitcher Joe Moeller.
From the world of entertainment, actor Stanley Tucci, actresses Mindy Cohn and Jennifer Lopez, television host David Horowitz, and radio producer Gary Dell'abate all hold or have held notary certificates.
Upon the death of President Warren G. Harding in 1923, Calvin Coolidge was sworn in as President by his father, a Vermont notary public. However, as there was some controversy as to whether a state notary public had the authority to administer the presidential oath of office, President Coolidge took the oath, again, upon returning to Washington.
See also
External links
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