Notarization Basics

Notarization Basics - Steps to Proper Notarization from Marcin Trojan

What is a Power of Attorney?

A Power Of Attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter, sometimes against the wishes of the other. The person authorizing the other to act is the principal,grantor, or donor (of the power). The one authorized to act is the agent or, in some common law jurisdictions, the attorney-in-fact (attorney for short).

Various types of Power of Attorney documents allow for more flexibility in granting specific rights to the “Agent”, as well as restricting the “Agent” to perform only specific actions, within the outlined scope of the granted authorization. At the same time, Power of Attorney document can assign broad, and even unlimited, powers to the “Agent”. The person who creates a power of attorney, known as the grantor, can only do so when he/she has the requisite mental capacity. Suppose the grantor loses capacity to grant permission after the power of attorney has been created (for example, from Alzheimer's disease or a head injury in a car crash); then the power will probably no longer be effective. In some powers of attorney the grantor states that he/she wishes the document to remain in effect even after he/she becomes incapacitated. This type of power is commonly referred to as a durable power of attorney. If someone is already incapacitated, it is not possible for that person to execute a valid power. If a person does not have the capacity to execute a power of attorney (and does not already have a durable power in place), often the only way for another party to act on their behalf is to have a court impose a conservatorship or a guardianship.In order for a power of attorney to be a legal document it must be signed and dated at a minimum by the principal. This alone, however, is not usually considered sufficient if the legality of the document is ever challenged by a third party. Having the document reviewed and signed (and often stamped) by a notary public increases the likelihood of withstanding such a challenge. There are few types of POA, most common are:  

• Durable power of attorney - Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes "incapacitated," meaning unable to grant such a power, because of physical injury or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated. This type of power of attorney is called "power of attorney with durable provisions" in the United States. In effect, under a durable power of attorney (DPA), the authority of the attorney-in-fact to act and/or make decisions on behalf of the grantor continues until the grantor's death.
• Health care power of attorney - In some jurisdictions, a durable power of attorney can also be a "health care power of attorney." This particular affidavit gives the attorney-in-fact the authority to make health-care decisions for the grantor, up to and including terminating care and life support. The grantor can typically modify or restrict the powers of the agent to make end-of-life decisions. In many jurisdictions a health care power of attorney is also referred to as a "health care proxy" and, as such, the two terms are sometimes used interchangeably.

Where can I get a certified copy of a document?

IN NY STATE NOTARY PUBLIC CANNOT PERFORM COPY CERTIFICATIONS OF ANY DOCUMENT - NEITHER PUBLICLY RECORDED NOR PRIVATE.

If you need a certified copy of any of publicly recorded documents like:

• Birth, marriage, and death certificates; 
• Certificates of citizenship or naturalization; 
• Documents filed in a court proceeding; 
• any form of ID (passport, driver license);
• Documents recorded by the Clerk of the Court; 
• Public records maintained in government offices; 
• Student records (transcripts, etc.) kept in public education offices; 
• Already filed federal or state income tax forms; 

- you may only obtain it from the custodian of records. 

In case of NYC vital records such as birth certificates, marriage certificates or death certificates- certified copies would have to be obtained from the NYC Health Department (birth and death records) or the NYC Marriage Bureau (marriage records).

When notary can refuse notarization?

There are few reason when notary public, by law, must refuse notarizing the document:

• The notary cannot verify the identity of the signer;
• The notary has a beneficial or financial interest in the document;
• The notary is unable to communicate with the signer (person is not mentally competent to sign);
• The notary has knowledge that the transaction is fraudulent;
• The signer did not personally appear before the notary at the time of the notarization;
• The document contains blank spaces;

What is exemplified copy?

An exemplified copy (or exemplification) is an official attested copy or transcript of a public instrument, made under the seal and original pen-in-hand signature of a court or public functionary and in the name of the sovereign, e.g., "The People of the State of New York". Exemplifications can only be attested and executed by either the authority holding the record or the issuing authority. Exemplified copies are also usually an extract or transcript made directly from the original. They can be contrasted with certified copies which are attested by a public authority who does not necessarily execute the copy; are signed and sealed by the certifier, not necessarily the issuing authority or recorder; and are a facsimile, made from the original or not, and vary as to faithfulness, e.g., fair copy, imitative copy, and so forth.

Certified copies of birth and death records from New York City, Los Angeles, Georgia, and in certain other locations in the US can, if requested, be accompanied by a letter of exemplification. This is the first step in a process leading to authentication or an apostille.

More specifically, the term refers to an attested copy of a legal pleading in its entirety. In this sense it is also known as a triple certificate or 3-way certificate. Its authenticity is sworn to by the clerk of the court where the judgement was rendered and counter-authenticated by the presiding judicial officer of that Court. The clerk then swears to the authenticity of the judge’s signature, incumbency, and authority. The certificate page with the triple authentication is called the exemplification. A copy of this type is normally required by other states and countries when copies are being submitted for filing in their local court.

What is a Jurat?

It is a notarial act in which a Notary certifies having watched the signing of a document and administered an oath or affirmation.
Compelling a document signer to be truthful is the main purpose of the notarial act called a jurat. The Notary’s function in executing a jurat is to appeal to the signer’s conscience and to initiate a process that could result in a criminal conviction for perjury if the signer is found to be lying under oath.

In executing a jurat, the Notary must watch the person sign the document, then have the signer make either a solemn, oral promise of truthfulness to a Supreme Being (called an oath) or a promise on one’s own personal honor (called an affirmation). The oath and affirmation have the same legal effect.

Jurats are common with documents that may be used as evidence in court proceedings, such as depositions and affidavits. 

What is an acknowledgement?

It is a notarial act in which a Notary certifies having positively identified a document signer who personally appeared before the Notary and admitted having signed the document freely. Shows that acknowledging party appeared personally before the officer (e.g.  Notary Public) taking the acknowledgement. Identifies acknowledging party by name corresponding to acknowledge document. Signed by officer's taking acknowledgment.   Sealed with officer's official seal (if applicable).A: Proves document - signature's authenticity. Essential elements of the Certificate of Acknowledgement:Entitles document to be accepted for filing and recording. In order for a notary to issue acknowledgement, it is not necessary for the document to be signed in his or her presence. However, the signer must still appear before the notary at the time of the acknowledgement to swear he or she freely signed for the purposes stated in the document under his or her own will. Some services, such as jurats, require the document actually be signed in the notary’s presence.  A jurat requires the wording “subscribed and sworn to” on the document just above where the Notary Public signs his or her name.

Can You Draft Legal Document or Give Me Legal Advice?

No.  State law strictly prohibits Notaries from the practice of law.  Notaries should never give advice on any matter relating to a document unless they are an attorney or professionals certified or licensed in a relevant area of expertise.

Can You Notarize Fax Or A Photocopy of The Document?

A photocopy or fax may be notarized, but only if it bears an original signature. That is, the copy must have been signed with pen and ink.

A photocopied or faxed signature may never be notarized. 

Care should be taken to copy faxes from thermal paper to regular paper before proceeding in having a document notarized in order to avoid rejection by public recorders.

Can You Certify A Copy Of A Birth Or Death Certificate?

No.  A Notary Public cannot certify a copy of a birth or death certificate.

Certified copies of birth and death records should be referred to the State Bureau of Vital Statistics or County Clerk's office in the county where the birth occurred.  For foreign birth certificates, a person should contact the consulate of the country of origin.

What type of ID do you accept?

Each signer must present at least one of the forms of photo ID listed below unless the signer is personally known by the Notary. The ID must be current or, if expired, have been issued within the last 5 years; contain the signer’s photograph, personal description, and signature;
and bear a serial or other identifying number.  A document signer personally known by the Notary need not present ID.

• Current driver’s License or non-driver’s ID card issued by a U.S. State.
• Current U.S. Passport
• Current U.S. Military Identification Card that contains all required elements stated above, (The Common Access Card (CAC) is not acceptable).
• Current driver’s license issued in Mexico or Canada.
• Current foreign passport stamped by the U.S. Citizenship and Immigration Services (USCIS).
• Current inmate ID.

Can you notarize any document?

For a document to be notarized, it must contain:

• Text committing the signer in some way;
• An original signature (not a photocopy) of the document signer;
• A notarial "certificate" which may appear on the document itself or on an attachment. The Notary fills in the certificate, signs it, and then applies his or her seal to complete the notarization.

Can Notary refuse to notarize the document?

Only if the Notary is uncertain of a signer's identity, willingness or general competence, or has a good reason to suspect fraud. Notaries should not refuse to serve anyone because of race, religion, nationality, lifestyle, or because the person is not a client or customer. Discrimination on any basis is not a suitable policy for a public official.

Can I sign the document earlier?

In order for a notary to issue acknowledgement, it is not necessary for the document to be signed in his or her presence. However, the signer must still appear before the notary at the time of the acknowledgement to swear he or she freely signed for the purposes stated in the document under his or her own will. Some services, such as jurats, require the document actually be signed in the notary’s presence.  A jurat requires the wording “subscribed and sworn to” on the document just above where the Notary Public signs his or her name.

What if I don't have a photo ID?

If a signer does not have a state or government issued photo ID that is not expired, then he or she will need two people present who will swear to his or her identity in order to be certified. The oath of a certifying witness is satisfactory evidence for certification.  Those two witnesses will have to have proper ID.  Medicaid cards, social security cards, credit cards, work IDs  are not valid forms of identification.

Why to notarize documents?

To deter fraud. Having a notary serve as an third-party witness ensures that the signers of a document are who they say they are and that they signed the document under their own free will. The most common notarization is an acknowledgement - it's a person’s sworn statement that he or she signed a paper by his or her own free will. To do this, a notary must verify the signer’s identity, apply his or her seal to the document, and then sign it.

Does the notary approve the documents?

Notarization does not guarantee that the information on a document is accurate or legal. The signer is responsible for the content of the document. The Notary Public simply certifies the signer’s identity, usually by verifying a current identifying document containing a photo, physical description, and signature. Government issued photo IDs, such as driver’s licenses, state ID cards, passports, military IDs, and inmate IDs are sufficient for certification. Social Security cards, birth Certificates, credit cards, immigration cards, and temporary driver’s licenses are not suitable for certification.

What Does A Notary Do?

The most frequent service a Notary Public performs is the simple one of taking someone's acknowledgment.  An acknowledgment is the solemn statement of a person that he or she signed a paper of his or her own free will.  The notary verifies the person's identity, presses his/her notary seal on the paper and signs it where the notary is meant to sign.

What is a Notary Public?

A Notary Public is an official of integrity appointed by Secretary Of State — to serve the public as an impartial witness (duty-bound not to act in situations where they have a personal interest) in performing a variety of official fraud-deterrent acts related to the signing of important documents. These official acts are called notarizations, or notarial acts.