Notaries provide assurance to the receiver of a notarized document that the signer personally appeared, was properly identified, took an oath or gave an affirmation and signed in the presence of the notary.
The notary’s testimony to these facts, in the form of the notary’s signature and stamp, authenticates the document and helps prevent fraud.
There is disagreement, however, as to whether the notary’s signature and stamp should also indicate that the ntoary properly screened the signer for his willingness to sign and his awareness of what he was signing. No statutes lay out a procedure or give guidelines for the notary to follow in screening a signer for willingness and awareness. Yet, notaries are told and continue to believe that screening for willingness and awareness is part of their responsibility.
Interacting With the Customer
As a notary, you are called upon to be an impartial witness, not an analyst. However, the law also requires that you refuse to be a party to any transaction that is false, fraudulent or frivolous. So it’s necessary for you to observe, question and listen to your customer. You must be allowed to examine the document and you must exercise good judgment – all this in just the few minutes you spend with your customer.
Competence, Comprehension and Willingness
Although the words are used interchangeably, there is a great deal of difference between competence and comprehension. Competence is related to the capacity or ability to enter into a binding contract, transfer assets or participate in a legal proceeding. Comprehension, on the other hand, is related to reasoning. A person comprehends or understands when he grasps the meaning, nature or importance of an act and can reason or draw conclusions from that knowledge. A qualified signer should be both competent to sign and comprehend what he’s signing.
Willingness refers to the customer’s inclination or preparedness to act. A customer who comes to you of his own free will or initiative, rather than being coerced or influenced by another person, shows a willingness to execute the notarial act. A qualified signer is competent, comprehends the situation and shows a willingness to sign.
You can determine a customer’s level of competence, comprehension and willingness by observing, questioning and listening to the customer. Does your customer’s body language suggest that he or she is upset, confused, distracted? Do your customer’s words indicate willingness or hesitation? Is he reasonably enthused or is he withdrawn? Is there another person in the room who may be exerting influence?
Ask to speak with the customer alone. Make eye contact with the customer. Ask open-ended questions. Your purpose is not to pry or have your customer reveal private information but to determine whether the situation is reliable; that your customer is who he says he is, knows what he’s doing and is willing to sign of his own free will.
Examining the Document
You aren’t required to read or understand the contents of a document a customer presents to you for notarization. And you aren’t responsible for the truth or validity of the words. However, you should not be prevented from considering the contents of the document in your decision on whether to notarize or not. You should look over the document to determine if there are opportunities for fraud: blank spaces where information could be filled in later, blank signature lines, or missing pages. Are the facts described to you by your customer reflected in the document?
Exercising Good Judgment
All of these elements present a dilemma for a notary. As a public official, a notary may not arbitrarily deny service to any individual. However, a notary may make a reasonable decision to refuse service. What factors should be present before a notary refuses to notarize a document?
No notary should agree to serve a customer who is clearly disoriented, intoxicated or similarly incapacitated.
When a situation is not clear, the notary needs to make a rational decision about each customer’s ability to take part in the notarial act. When a customer appears to be confused, misled, disoriented, under duress, or otherwise not in a clear frame of mind, the notary has an obligation to protect the rights of that individual and refuse service. When the notary is able to determine that a customer does not grasp the importance or consequences of his actions, or is unwilling to sign, the notary should refuse to notarize for that customer.