Principles of Notarization: Chapter 3: Personal Appearance
A "personal appearance before a notary public" means that the person signing a document must physically be present in front of the notary at the time of signing, allowing the notary to verify their identity and ensure they are willingly signing the document; it is a fundamental requirement for any notarization to prevent fraud and protect against potential legal issues.
Key points about personal appearance before a notary:
Mandatory in most states: Almost every jurisdiction requires signers to appear personally before a notary to have a document notarized.
Identity verification: The primary reason for personal appearance is that the notary can properly verify the signer's identity by checking their government-issued ID.
Preventing fraud: By requiring face-to-face interaction, the notary can assess if the signer is signing voluntarily and not under duress.
Legal implications: Notarizing a document without a personal appearance could result in legal consequences for the notary if fraud is later discovered.
The First Step
The appearance of the signer before the Notary Public is a fundamental requirement for any valid notarization. The notary can only adequately identify and verify the signer's informed and willing participation if they are in the notary's presence.
This personal appearance must be made at the time of the notarization — not before and not after — in the state and county indicated on the Notarial Certificate.
A personal appearance before a notary public means that the person signing a document must physically be present in front of the notary at the time of signing. This allows the notary to verify the identity of the person signing the document and ensure that they are willingly signing the document. This fundamental requirement helps prevent fraud and protect against potential legal issues arising from a challenge to the validity of the signature.
Every certificate states that the signer was in the Notary's presence. This statement may be clear and direct, as in:
Or, it may be less direct, as in:
Subscribed and sworn to before me by _______________(name of signer)...
Thus, any notary who does not require the physical presence of a document signer is blatantly neglecting a clear-cut responsibility of the Notary office and, in some states, may be prosecuted for issuing a false certificate. This would be besides other criminal charges that could arise out of the Notary's willing participation in fraud, as well as civil lawsuits filed against the Notary to recover losses.
Notaries are often asked to notarize the signature of an absent third party as a favor. Unfortunately, these signatures are often proven to be forgeries later on. What makes this worse is that the individuals who most often take advantage of notaries are not strangers, but people they know and trust. This betrayal of trust is a serious problem for notaries, as it can lead to legal liability and loss of reputation.
A notary public is a public official who witnesses the signing of a document and verifies the identity of the person signing the document. In some jurisdictions, a notary public is required to be present at the signing of a document. If a notary public fails to require the physical presence of a signer, the notary may be prosecuted for issuing a false notary certificate, which is a criminal act. Other charges, as well as civil lawsuits, also could arise. The notary may also be held liable for any damages that result from the notary's failure to properly notarize the document.
Failure Aids Fraud
Failure to require the physical presence of a document signer at the time of notarization is a serious violation by a Notary. It can result in criminal prosecution, civil lawsuits, and administrative penalties. These are only part of the fallout from such an act.
A notary public is a public official authorized to attest to the authenticity of documents by witnessing their signing and affixing their seal. In some jurisdictions, a notary is also authorized to administer oaths and affirmations. A notary's certificate affirms that the signer personally appeared before the notary and presented a document for notarization. The certificate also attests that the signer is the person whose signature appears on the document and that the signer personally appeared before the notary. Failure to require the physical presence of a document signer at the time of notarization is a serious violation by a notary. It can result in criminal prosecution, civil lawsuits, and administrative penalties. These are only part of the fallout from such an act. By completing a notary certificate without the presence of the signer, even the best-intentioned notary facilitates a potential multitude of frauds that can inflict financial disaster on unsuspecting victims, especially when the fraud involves real estate.
A notary public is a public official authorized to attest to the authenticity of documents by witnessing their signing and affixing their seal. In some jurisdictions, a notary is also authorized to administer oaths and affirmations. A notary's certificate affirms that the signer personally appeared before the notary and presented a document for notarization. The certificate also attests that the signer is the person whose signature appears on the document and that the signer personally appeared before the notary. Failure to require the physical presence of a document signer at the time of notarization is a serious violation by a notary. It can result in criminal prosecution, civil lawsuits, and administrative penalties. These are only part of the fallout from such an act. By completing a notary certificate without the presence of the signer, even the best-intentioned notary facilitates a potential multitude of frauds that can inflict financial disaster on unsuspecting victims, especially when the fraud involves real estate.
A notary public is a public official authorized to attest to the authenticity of documents by witnessing their signing and affixing their seal. In some jurisdictions, a notary is also authorized to administer oaths and affirmations. A notary's certificate affirms that the signer personally appeared before the notary and presented a document for notarization. The certificate also attests that the signer is the person whose signature appears on the document and that the signer personally appeared before the notary. Failure to require the physical presence of a document signer at the time of notarization is a serious violation by a notary. It can result in criminal prosecution, civil lawsuits, and administrative penalties. These are only part of the fallout from such an act. By completing a notary certificate without the presence of the signer, even the best-intentioned notary facilitates a potential multitude of frauds that can inflict financial disaster on unsuspecting victims, especially when the fraud involves real estate.
In a surprisingly high percentage of cases, a spouse or business partner asks a notary to trust that the signature of an absent spouse or partner is genuine, and the signature turns out to be a forgery. This betrayal of trust is a serious problem for notaries, as it can lead to legal liability and loss of reputation. It is also a problem for the person who was deceived into signing the document, as it can result in financial loss, legal liability, and damage to their reputation.
Notaries often notarize the signature of an absent third party as a favor. Unfortunately, these signatures are often proven to be forgeries later on. What makes this worse is that the individuals who most often take advantage of notaries are not strangers, but people they know and trust. This betrayal of trust is a serious problem for notaries, as it can lead to legal liability and loss of reputation.
Courts Strict on Personal Appearance Requirement
In Christensen v. Arant, the Nebraska Supreme Court ruled that a signer must physically appear before a notary public. The court found that the notary's failure to require the signer's physical presence was a fundamental violation of the notary's duty. The court also found that the notary's conduct facilitated fraud and caused financial harm to the signer.
A notary public is a public official authorized to attest to the authenticity of documents by witnessing their signing and affixing their seal. In some jurisdictions, a notary is also authorized to administer oaths and affirmations. A notary's certificate affirms that the signer personally appeared before the notary and presented a document for notarization. The certificate also attests that the signer is the person whose signature appears on the document and that the signer personally appeared before the notary. Failure to require the physical presence of a document signer at the time of notarization is a serious violation by a notary. It can result in criminal prosecution, civil lawsuits, and administrative penalties. These are only part of the fallout from such an act. By completing a notary certificate without the presence of the signer, even the best-intentioned notary facilitates a potential multitude of frauds that can inflict financial disaster on unsuspecting victims, especially when the fraud involves real estate.
A personal appearance before a notary public means that the person signing a document must physically be present in front of the notary at the time of signing, allowing the notary to verify their identity and ensure they are willingly signing the document. This fundamental requirement helps prevent fraud and protect against potential legal issues arising from a challenge to the validity of the signature.
Exceptions
In most jurisdictions, it is illegal to notarize the signature of a person who is not physically present. However, there are two narrow exceptions to this rule: 1) an attorney-in-fact can notarize a signature, and 2) a subscribing witness can notarize a signature.
In the case of a durable power of attorney, the principal's signature is not actually being notarized. Instead, the attorney-in-fact's signature is being notarized. This is because the attorney-in-fact is the one who will be making decisions on behalf of the principal.
Attorney in Fact
An attorney-in-fact is a person who is legally authorized to act on behalf of another person, known as the principal. The attorney-in-fact is also sometimes called the agent. An attorney-in-fact is not necessarily a lawyer and does not need to have any special qualifications. The authority given to an attorney-in-fact is specified in a legal document called a power of attorney. The power of attorney can grant a wide range of authority, such as managing finances, applying for benefits, or collecting debts. The principal should specify in the power of attorney document what powers are being given to the attorney-in-fact and when those powers will take effect.
Here are some tips for acting as an attorney-in-fact:
Keep detailed records of all actions taken.
Keep the funds being managed separately from your own money.
Consult with an attorney about what actions can and cannot be taken.
In some cases, the courts may appoint an attorney-in-fact for someone who has become incapacitated.
In some cases, a document may be signed by an attorney in fact on behalf of the principal named in the document. To determine whether the attorney in fact has the authority to act on behalf of the principal, the conscientious Notary would ask to see the power of attorney document that designates the attorney in fact. The Notary would then verify that the document authorizes the signer to act on behalf of the principal. If the attorney in fact does not have the authority to act on behalf of the principal, the Notary would not allow the document to be signed.
Subscribing Witness
In most states, a subscribing witness can provide proof of execution that satisfies the requirement for a personal appearance before a notary public. The witness must have seen the principal sign the document or have taken the principal's acknowledgment of an already affixed signature. The witness must then swear under oath or affirmation before a notary that the principal either signed the document in the witness's presence or acknowledged their signature. The witness must also sign the document in the presence of the notary.
A notary public is a public official authorized to attest to the authenticity of documents by witnessing their signing and affixing their seal. In some jurisdictions, a notary is also authorized to administer oaths and affirmations. A notary's certificate affirms that the signer personally appeared before the notary and presented a document for notarization. The certificate also attests that the signer is the person whose signature appears on the document and that the signer personally appeared before the notary. Failure to require the physical presence of a document signer at the time of notarization is a serious violation by a notary. It can result in criminal prosecution, civil lawsuits, and administrative penalties. These are only part of the fallout from such an act. By completing a notary certificate without the presence of the signer, even the best-intentioned notary facilitates a potential multitude of frauds that can inflict financial disaster on unsuspecting victims, especially when the fraud involves real estate.
Chapter 11 will describe the proof of execution by subscribing witness. This chapter will provide a detailed explanation of this type of proof.
Other than the two preceding "exceptions," there is no surer way for a Notary to avoid a civil or criminal lawsuit than to obey one simple rule Never notarize the signature of a person who is not in your presence at the time of the notarization.
Disclosure:I am not licensed to practice law or give legal advice.
However, I can help you with a variety of notary services.
The information in this blog is not intended to be legal advice. If you have a question about a specific notary law or regulation, please consult an attorney in your state.
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