TERESA TAMRAT        ASSOCIATES

12-18-2014

Apostilles and Certificates of Authority

Sometimes when a notarial act is performed involving a document that is headed to another state or a foreign country, the receiving state or country requires a "certificate of authority" from the notary's commissioning authority. This official document authenticates the notary's authority, stating that the notary was duly commissioned on the date of the notarial act. When the document in question is headed to certain foreign countries, the certificate of authority takes a different form called an "apostille."

 

It is not your responsibility to obtain apostilles or certificates of authority, but you should be familiar with the process in order to be a good source of information to your clients.

 

Commissioning Authority—The governmental authority that commissioned you as a notary is the resource for a certificate of authority or apostille. Depending on the state, the commissioning authority can be the Secretary of State, Governor, Lt. Governor, individual County Probate Judge, Clerk of Superior Court, Superior Court Assistant Judge, Attorney General, or the Department of Licensing. (In the District of Columbia, it's the Mayor.)

 

The Process—Requests for a certificate of authority or apostille must be made in writing, and delivered to the notary's commissioning authority by mail or in person. The letter should explain why the certificate of authority or apostille is needed, and where the document is headed. A postage-paid, return envelope with either the address of the document custodian, or the address of the document's final destination, should be included. There is generally a processing fee that varies by state. The original document bearing the notary's completed notarial certificate must also be presented with the written request and fee.

 

Depending on where the document is headed overseas, your commissioning authority will know whether a certificate of authority or apostille is needed and will generate the correct document.

 

The commissioning authority will then verify the notary's signature and commission details against the official record. (For example, does the notary's signature on the notarial certificate match the sample on file? Was the notary's commission in effect and not expired on the date of the notarial act?)

 

If all is in order, the commissioning authority then completes a written certificate of authority, affixes an official seal, attaches the certificate to the document, and returns the document to the document custodian. Or, the document and certificate of authority may be sent to its final destination if the return envelope (submitted by the document custodian) displays the proper address.

 

In addition, some foreign countries may require federal authentication from the Department of State's Authentication Office in Washington, D.C. For federal authentication, the document custodian must submit the original, notarized document with its state certificate of authority, a letter stating why federal authentication is needed, and where the document is headed overseas. There is a $7 per document fee, payable by personal check or money order to U.S. Department of State (Visa or Mastercard accepted from walk-ins only).

 

Apostilles—For years, documents headed to foreign countries had to go through a multi-step process of "legalisation"-i.e., authentication-in order to be delivered to the intended foreign country. This remains true for some countries. In 1961, however, a number of countries including the United States entered into a treaty called the "Hague Convention Abolishing The Requirement of Legalisation for Foreign Public Documents" which greatly simplifies the authentication process.

 

Countries that signed this particular treaty agreed on a streamlined process of document "legalisation," and on a standardized certificate of authentication called an "Apostille." The treaty specifies the exact physical details of the apostille: it must be in the form of a square with sides at least nine centimeters long; and it must contain the exact wording set forth in the treaty. Your commissioning authority uses the apostille form for authenticating a notary's authority, when the related document is headed to a country that signed the Hague treaty.

 

Only countries that signed this particular Hague Convention may utilize the apostille, and only those countries enjoy the streamlined authentication process afforded by use of the apostille. Note: an apostille is not used when a document is going from one state in the U.S. to another U.S. state-a certificate of authority is used instead.

 

As stated earlier in this article, the process for obtaining an apostille is the same as for obtaining a certificate of authority. Your commissioning authority will know which form is appropriate, based on the destination of the document.

 

To review who your commissioning authority is, and where to write (or walk-in) for a certificate of authority/apostille, remember to visit ASN's web site, www.asnnotary.org. Click on "Notary Information by State" in the left-hand margin, then select your state.

 

 

12-10-2014

Conflict of Interest    

The Situation:  A notary has been asked to perform a notarial act involving a document that the notary must also sign as a party to the transaction. The signer’s execution (signing) of the document requires an acknowledgment, but the notary’s, as a named party, does not.

The Notary’s Dilemma:  Can the notary proceed with notarization involving a document that he will also sign as a named party?

The Solution:  The above situation would create a conflict of interest for the notary and he should not perform the requested notarial act.

Notary laws provide certain prohibitions against conflicts of interest. The purpose of these laws is to protect the public. In performing your duties, it is essential that you act with total impartiality. You must be an unbiased, disinterested party who stands between the signer and anyone who would defraud that signer. That means, when performing a notarial act, you cannot have any conflict of interest, including being a party to the transaction or gaining financially or materially from the transaction.

NAMED PARTY CONFLICT
Oregon notary law, for example, specifically forbids notaries from performing notarial acts involving a transaction to which the notary is a party:

Oregon Revised Statutes 194.158 Prohibited acts:
(1) A notary public may not perform a notarial act if the notary is a signer of or named in the document that is to be notarized. Michigan’s notary statutes carry a similar prohibition:

Michigan Notary Public Act, Section 55.291:
(7) A notary public shall not perform any notarial act in connection with a transaction if the notary public has a conflict of interest. As used in this subsection, “conflict of interest” means either or both of the following:
(a) The notary public has a direct financial or beneficial interest, other than the notary public fee, in the transaction.
(b) The notary public is named, individually, as a grantor, grantee, mortgagor, mortgagee, trustor, trustee, beneficiary, vendor, vendee, lessor, or lessee or as a party in some other capacity to the transaction.

FINANCIAL GAIN CONFLICT
Clearly, you cannot be impartial if you stand to gain financially from a transaction, even if you are neither a party to nor named in the documents related to the transaction. For example, if you receive a commission or bonus if the transaction is successfully executed, you are not an impartial observer and must not be the notary for the transaction. (A financial benefit would not include your fee for the notarial service, nor would it include your salary as an employee.)

MATERIAL GAIN CONFLICT
When deciding whether or not you should perform a notarial act, it is sometimes harder to envision a benefit that is not expressed in dollars and cents.

An ASN member who was a notary for a church called to ask if she could notarize for her pastor on documents establishing a school at the church. As it happened, with the establishment of the school the notary would gain the use of an automobile that would be purchased by the school. We told her that the use of the automobile constituted a material gain and meant that she should not be the notary for documents related to the establishment of the school because she would not be considered impartial.

NOTARIZING FOR FAMILY
Another conflict of interest is notarizing for family members. Some states’ notary laws do not specifically address notarizing for relatives, while other states have very specific statutes that prohibit the notary from officiating for certain family members (usually spouse, children, siblings and parents). A notary public must be an impartial witness, and best practice would dictate that the notary not notarize for a person related by birth, marriage or adoption.

 

11-22-2014

Identification by Credible Witness

Credible Witness Affidavit
The credible witness affidavit as a means of identification is for the client who is not personally known to the notary, has no form of identification and cannot be reasonably expected to obtain an acceptable ID card. These clients are frequently elderly people who live in a nursing home environment and have mobility issues. They haven’t driven a car in years, and it would be unreasonable to expect the person to be taken to the Department of Motor Vehicles to obtain a non-driver’s identity card.  Certain handicapped people may also fall into this category. Use your judgment when deciding if your client is eligible for identification by credible witness.

A credible witness or witnesses may NOT be used to identify a client for the sake of convenience. If the able-bodied client has let his driver’s license expire, he must obtain a current license. If someone has left his ID card at home, he must return home and get the existing ID card. In addition, keep in mind that since the credible witness(es) will serve as positive identification for the document signer, the credible witness(es) sworn affidavit must be obtained before performance of the notarial act for the document signer.

Our discussion of the process for using a credible witness(es) will be general in nature. Read your state’s statutes regarding the use of credible witness(es) before attempting to use this method of identifying a client.

One Credible Witness
All states that allow the notary to use one credible witness have the requirement that the credible witness must personally know the signer of the document, and the notary must personally know the credible witness. The purpose of this requirement is to maintain a chain of personal knowledge from the signer through the credible witness to the notary.

The credible witness will sign an affidavit stating that:

1.  The person appearing before the notary is personally known to the credible witness and is the person whose name appears on the document in question.
2.  The credible witness reasonably believes that the document signer does not possess an acceptable form of identification.
3.  The credible witness reasonably believes that the circumstances of the document signer are such that obtaining an acceptable form of identification would be very difficult or impossible.
4.  The credible witness does not have a financial interest in nor is a party to the transaction.

Upon signing the affidavit, the signer will swear an oath or affirmation to the notary that the contents of the affidavit are true. The notary may verbalize the short form of oath/affirmation (“Do you swear/affirm the contents of this document are true [so help you God]?”). Or, the notary may verbalize this more specific oath/affirmation:

“Do you solemnly (swear) (affirm) under penalties of perjury that you personally know this person as (name of person whose signature is to be notarized), that he/she is the person named in the document, that you believe that the person has no acceptable form of identification, that it would be very difficult or impossible for him/her to obtain acceptable identification, and that you have no financial interest in and are not a party to this transaction (so help you God)?”

If you receive an affirmative verbal reply to the oath or affirmation shown above, complete the Credible Witness Affidavit form by filling in the jurat section. Attach the Credible Witness Affidavit to the document and indicate on the notarial certificate on the document that identification was made through a Credible Witness Affidavit. Have the credible witness sign and print his name, address and phone number in a separate recordbook entry  for the notarial act of completing the Credible Witness Affidavit. In the space for additional information or comments write:

“This entry is related to entry #XXX…,”

the recordbook entry for the notarial act performed over the original document. In the space reserved for additional information or comments in the recordbook entry for the notarial act performed over the original document write:

“Signer positively identified through credible witness affidavit; please see entry #XXX.”

Two Credible Witnesses
There are ONLY eight states that permit the use of two credible witnesses. They are California, Delaware, Florida, Georgia, Mississippi, Nebraska, New Mexico and Virginia. Both credible witnesses must personally know the document signer and possess an acceptable identification document to present to the notary for positive identification. When two credible witnesses are used, they both complete the credible witness affidavit, sign it and print their names under their signatures. The notary administers a verbal oath/affirmation to both witnesses, then completes the jurat section of the affidavit. The notary enters the type of identification document each credible witness presented on the Credible Witness Affidavit. Because of an increasing number of incidents of identity theft, notaries are advised not to write the serial number of the ID card on the notarial certificate. Notaries in a few states are prohibited from recording ID serial numbers.

Have the two witnesses sign and print their names, addresses and phone numbers in a separate recordbook entry for the notarial act of completing the Credible Witness Affidavit. Write into that recordbook entry the type of identification document that was produced by each credible witness (Remember NOT to record serial numbers). In the space for additional information or comments write:

“This entry is related to entry #XXX…,”

the recordbook entry for the notarial act performed over the original document. In the space reserved for additional information or comments in the recordbook entry for the notarial act performed over the original document write:

“Signer positively identified through credible witness affidavit; please see entry #XXX.”