‘Gray Areas’ That Often Confound Notaries

Updated 8-8-17. Notaries sometimes encounter situations during notarizations that state law doesn’t provide clear instructions for. In these situations, it may be hard to tell if you should perform the notarization or turn the request down. Here are several scenarios that fall into this gray area of state law, and some suggestions to help you.
If You Suspect 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 demeanor 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]).
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 Requests

Another tough situation many Notaries face is requests from employers 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 states requirements. If your employer makes a request for you as a Notary Public, ask yourself the following questions:
1. Is the request legal in your 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. If state Notary law doesn’t specify Notary-employee services, an employer does have a right to direct a Notary employee during business hours.
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 most states an employer may dictate when an employee-Notary 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.

 

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