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A notary public (or notary or public notary) of the common law is a public officer constituted by law to serve the public in non-contentious matters usually concerned with estates, deeds, powers-of-attorney, and foreign and international business. A notary's main functions are to administer oaths and affirmations, take affidavits and statutory declarations, witness and authenticate the execution of certain classes of documents, take acknowledgments of deeds and other conveyances, protest notes and bills of exchange, provide notice of foreign drafts, prepare marine or ship's protests in cases of damage, provide exemplifications and notarial copies, and perform certain other official acts depending on the jurisdiction. Any such act is known as a notarization. The term notary public only refers to common-law notaries and should not be confused with civil-law notaries.
With the exceptions of Louisiana, Puerto Rico, Quebec, whose private law is based on civil law, and British Columbia, whose notarial tradition stems from scrivener notary practice, a notary public in the rest of the United States and most of Canada has powers that are far more limited than those of civil-law or other common-law notaries, both of whom are qualified lawyers admitted to the bar: such notaries may be referred to as notaries-at-law or lawyer notaries. Therefore, at common law, notarial service is distinctly different from the practice of law, and giving legal advice and preparing legal instruments is forbidden to lay notaries such as those appointed throughout most of the United States of America.
Notaries are appointed by a government authority, such as a court or lieutenant governor, or by a regulating body often known as a society or faculty of notaries public. For lawyer notaries, an appointment may be for life, while lay notaries are usually commissioned for a briefer term, with the possibility of renewal.
In most common law countries, appointments and their number for a given notarial district are highly regulated. However, since the majority of American notaries are lay persons who provide officially required services, commission numbers are not regulated, which is part of the reason why there are far more notaries in the United States than in other countries (4.5 million vs. approx. 740 in England and Wales and approx. 1,250 in Australia and New Zealand). Furthermore, all U.S. and some Canadian notarial functions are applied to domestic affairs and documents, where fully systematized attestations of signatures and acknowledgment of deeds are a universal requirement for document authentication. By contrast, outside North American common law jurisdictions, notarial practice is restricted to international legal matters or where a foreign jurisdiction is involved, and almost all notaries are also qualified lawyers.
For the purposes of authentication, most countries require commercial or personal documents which originate from or are signed in another country to be notarized before they can be used or officially recorded or before they can have any legal effect. To these documents a notary affixes a notarial certificate which attests to the execution of the document, usually by the person who appears before the notary, known as an appearer or constituent (U.S.). In places where lawyer notaries are the norm, a notary may also draft legal instruments known as notarial acts or deeds which have probative value and executory force, as they do in civil law jurisdictions. Originals or secondary originals are then filed and stored in the notary's archives, or protocol.
Notaries are generally required to undergo special training in the performance of their duties. Some must also first serve as an apprentice before being commissioned or licensed to practice their profession. In many countries, even licensed lawyers, e.g., barristers or solicitors, must follow a prescribed specialized course of study and be mentored for two years before being allowed to practice as a notary (e.g., British Columbia, England). However, notaries public in the U.S., of which the vast majority are lay people, require only a brief training seminar and are expressly forbidden to engage in any activities that could be construed as the unlicensed practice of law unless they are also qualified attorneys. Notarial practice is universally considered to be distinct and separate from that of an attorney (solicitor/barrister). In England and Wales, there is a course of study for notaries which is conducted under the auspices of the University of Cambridge and the Society of Notaries of England and Wales. In the State of Victoria, Australia, applicants for appointment must first complete a Graduate Diploma of Notarial Practice which is administered by the Sir Zelman Cowen Centre in Victoria University, Melbourne.
In bi-juridical jurisdictions, such as South Africa or Louisiana, the office of notary public is a legal profession with educational requirements similar to those for attorneys. Many even have institutes of higher learning that offer degrees in notarial law. Therefore, despite their name, "notaries public" in these jurisdictions are in effect civil law notaries.
Notaries public (also called "notaries", "notarial officers", or "public notaries") hold an office which can trace its origins back to the ancient Roman Republic, when they were called scribae ("scribes"), tabelliones forenses, or personae publicae.
The history of notaries is set out in detail in Chapter 1 of Brooke's Notary (13th edition):
The office of a public notary is a public office. It has a long and distinguished history. The office has its origin in the civil institutions of ancient Rome. Public officials, called scribae, that is to say, scribes, rose in rank from being mere recorders of facts and judicial proceedings, copiers and transcribers to a learned profession prominent in private and public affairs. Some were permanent officials attached to the Senate and courts of law whose duties were to record public proceedings, transcribe state papers, supply magistrates with legal forms, and register the decrees and judgments of magistrates.
In the last century of the Republic, probably in the time of Cicero, and apparently by his adoptive son Marcus Tullius Tiro, after whom they were named 'notae Tironianae' a new form of shorthand was invented and certain arbitrary marks and signs, called notae, were substituted for words in common use. A writer who adopted the new method was called a notarius. Originally, a notary was one who took down statements in shorthand using these notes, and wrote them out in the form of memoranda or minutes. Later, the title notarius was applied almost exclusively to registrars attached to high government officials, including provincial governors and secretaries to the Emperor.
Notwithstanding the collapse of the Western Empire in the 5th century AD, the notary remained a figure of some importance in many parts of continental Europe throughout the Dark Ages. When the civil law experienced its renaissance in medieval Italy from the 12th century onwards, the notary was established as a central institution of that law, a position which still exists in countries whose legal systems are derived from the civil law, including most of Europe and South America. The office of notary reached its apogee in the Italian city of Bologna in the twelfth century, its most distinguished scion being Rolandino Passeggeri generally known as Rolandino of Bologna, who died in 1300 AD, whose masterwork was the Summa Artis Notariae.
The separate development of the common law in England, free from most of the influences of Roman law, meant that notaries were not introduced into England until later in the 13th and 14th centuries. At first, notaries in England were appointed by the Papal Legate. In 1279 the Archbishop of Canterbury was authorized by the Pope to appoint notaries. Not surprisingly, in those early days, many of the notaries were members of the clergy. In the course of time, members of the clergy ceased to take part in secular business and laymen, especially in towns and trading centers, began to assume the official character and functions of a modern common law notary.
The Reformation produced no material change in the position and functions of notaries in England. However, in 1533 the enactment of "the Act Concerning Peter's Pence and Dispensations" (the Ecclesiastical Licences Act 1533) terminated the power of the Pope to appoint notaries and vested that power in the King who then transferred it to the Archbishop of Canterbury who in turn assigned it to the Court of Faculties and the Master of the Faculties.
Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required.
A collection of articles on notary history, including Ancient Egypt, Phoenicia, Babylonia, Rome, Greece, medieval Europe, the Renaissance, Columbus, Spanish Conquistadors, French Louisiana, New England colonial notaries, Republic of Texas notaries and Colorado Old West notaries, is available in the notary history section of the Colorado Notary Blog at the following link.
Common law jurisdictionsEdit
The duties and functions of notaries public are described in Brooke's Notary on page 19 in these terms:
Generally speaking, a notary public [...] may be described as an officer of the law [...] whose public office and duty it is to draw, attest or certify under his/her official seal deeds and other documents, including wills or other testamentary documents, conveyances of real and personal property and powers of attorney; to authenticate such documents under his signature and official seal in such a manner as to render them acceptable, as proof of the matters attested by him, to the judicial or other public authorities in the country where they are to be used, whether by means of issuing a notarial certificate as to the due execution of such documents or by drawing them in the form of public instruments; to keep a protocol containing originals of all instruments which he makes in the public form and to issue authentic copies of such instruments; to administer oaths and declarations for use in proceedings [...] to note or certify transactions relating to negotiable instruments, and to draw up protests or other formal papers relating to occurrences on the voyages of ships and their navigation as well as the carriage of cargo in ships." [Footnotes omitted.]
A notary, in almost all common law jurisdictions other than most of North America, is a practitioner trained in the drafting and execution of legal documents. Notaries traditionally recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required. The functions of notaries specifically include the preparation of certain types of documents (including international contracts, deeds, wills, and powers of attorney) and certification of their due execution, administering of oaths, witnessing affidavits and statutory declarations, certification of copy documents, noting and protesting of bills of exchange, and the preparation of ships' protests.
Documents certified by notaries are sealed with the notary's seal or stamp and are recorded by the notary in a register (also called a "protocol") maintained and permanently kept by him or her. These are known as "notarial acts". In countries subscribing to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents or Apostille Convention, only one further act of certification is required, known as an apostille, and is issued by a government department (usually the Foreign Affairs Department or similar). For countries which are not subscribers to that convention, an "authentication" or "legalization" must be provided by one of a number of methods, including by the Foreign Affairs Ministry of the country from which the document is being sent or the embassy, Consulate-General, consulate or High Commission of the country to which it is being sent.
Information on individual countriesEdit
In all Australian states and territories (except Queensland) notaries public are appointed by the Supreme Court of the relevant state or territory. Very few have been appointed as a notary for more than one state or territory.
Australian notaries are lawyers and are members of the Australian and New Zealand College of Notaries, The Society of Notaries of New South Wales Inc., the Public Notaries Society of Western Australia Inc, and other state-based societies. The overall number of lawyers who choose to become a notary is relatively low. For example, in South Australia (a state with a population of 1.5 million), of the over 2,500 lawyers in that state only about 100 are also notaries and most of those do not actively practice as such. In Melbourne, Victoria, in 2002 there were only 66 notaries for a city with a population of 3.5 million and only 90 for the entire state. In Western Australia, there are approximately 58 notaries as at 2017 for a city with a population of 2.07 million people. Compare this with the United States where it has been estimated that there are nearly 5 million notaries for a nation with a population of 296 million.
As Justice Debelle of the Supreme Court of South Australia said in the case of In The Matter of an Application by Marilyn Reys Bos to be a Public Notary  SASC 320, delivered 12 September 2003, in refusing the application by a non-lawyer for appointment as a notary:
As a general rule, an applicant [for appointment as a notary] should be a legal practitioner of several years standing at least. Even a cursory perusal of texts on the duties and functions of a public notary demonstrates that a number of those functions and duties require at the very least a sound working knowledge of Australian law and commercial practice. In other words, the preparation of a notarial act plainly requires a sound knowledge of law and practice in Australia especially of the due preparation and execution of commercial and contractual instruments. It is essential that notaries in this state have a sufficient level of training, qualification and status to enable them efficiently and effectively to discharge the functions of the office.
Historically there have been some very rare examples of patent attorneys or accountants being appointed, but that now seems to have ceased.
However, there are three significant differences between notaries and other lawyers.
- the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties to a transaction as long as there is no conflict between them, and in such cases it is their duty is to ensure that the transaction that they conclude is fair to both sides.
- a notary will often need to place and complete a special clause onto or attach a special page (known as an eschatocol) to a document in order to make it valid for use overseas.
In the case of some documents which are to be used in some foreign countries it may also be necessary to obtain another certificate known either as an "authentication" or an "apostille" (see above) (depending on the relevant foreign country) from the Department of Foreign Affairs and Trade.
- a notary identifies themselves on documents by the use of their individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the authenticity of a document.
Their principal duties include:
- attestation of documents and certification of their due execution for use internationally
- preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use internationally
- administering of oaths for use internationally
- witnessing affidavits, statutory declarations and other documents for use internationally
- certification of copy documents for use internationally
- exemplification of official documents for use internationally
- noting and protesting of bills of exchange (which is rarely performed)
- preparation of ships' protests
- providing certificates as to Australian law and legal practice for use internationally
It is usual for Australian notaries to use an embossed seal with a red wafer, and now some Notaries also use an inked stamp replicating the seal. It is also common for the seal or stamp to include the notary's chosen logo or symbol.
In South Australia and Scotland, it is acceptable for a notary to use the letters "NP" after their name. Thus a South Australian notary may have "John Smith LLB NP" or similar on his business card or letterhead.
Australian notaries do not hold "commissions" which can expire. Generally, once appointed they are authorized to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. In certain states, for example, New South Wales and Victoria, they cease to be qualified to continue as a notary once they cease to hold a practicing certificate as a legal practitioner. Even judges, who do not hold practicing certificates, are not eligible to continue to practice as notaries.
There are also Notary Societies throughout Australia and the societies keep a searchable list of their members. In New South Wales, The Society of Notaries of New South Wales Inc.; in Queensland The Society of Notaries Queensland Inc.; in South Australia the Notaries' Society of South Australia Inc. and in Victoria, The Society of Notaries of Victoria Inc..
Notaries collecting information for the purposes of verification of the signature of the deponent might retain the details of documents which identify the deponent, and this information is subject to the Privacy Act 1988. A notary must protect the personal information the notary holds from misuse and loss and from unauthorised access, modification or disclosure.
All Australian jurisdictions also have justices of the peace (JP) or commissioners for affidavits and other unqualified persons who are qualified to take affidavits or statutory declarations and to certify documents. However they can only do so if the relevant affidavit, statutory declaration or copy document is to be used only in Australia and not in a foreign country, with the possible exception of a few Commonwealth countries not including the United Kingdom or New Zealand except for very limited purposes. Justices of the peace (JPs) are (usually) laypersons who have minimal, if any, training (depending on the jurisdiction) but are of proven good character. Therefore, a US notary resembles an Australian JP rather than an Australian notary.
Canadian notaries public (except in the Province of British Columbia and Quebec) are very much like their American counterparts, generally restricted to administering oaths, witnessing signatures on affidavits and statutory declarations, providing acknowledgements, certifying true copies, and so forth.
In British Columbia, a notary public is more like a British or Australian notary. Notaries are appointed for life by the Supreme Court of British Columbia and as a self-regulating profession, the Society of Notaries Public of British Columbia is the regulatory body overseeing and setting standards to maintain public confidence. A BC Notary is also a Commissioner for Taking Affidavits for British Columbia, by reason of office. Furthermore, BC notaries exercise far greater power, able to dispense legal advice and draft public instruments including:
- Notarization – notarizations/attestations of signatures, affidavits, statutory declarations, certified true copies, letters of invitation for foreign travel, authorization of minor child travel, execution/authentications of international documents, passport application documentation, proof of identity for travel purposes
- Real estate law – home purchase/sale; business purchase/sale; mortgages and refinancing; residential, commercial, & manufactures home transfer of title; restrictive covenants & builder's liens
- Wills & estate planning – preparation and searches of last wills and testaments, advance directives, representation agreements & power of attorney
- Contract law – preparation of contracts and agreements, commercial lease and assignments
- easements and right of way
- insurance loss declarations
- marine bills of sale & mortgages
- marine protestations
- personal property security agreements
- purchaser's side for foreclosures
- subdivisions & statutory building schemes
- zoning applications
In Nova Scotia a person may be a notary public, a commissioner of oaths, or both. A notary public and a commissioner of oaths are regulated by the provincial Notaries and Commissioners Act. Individuals hold a commission granted to them by the Minister of Justice.
Under the Act a notary public in has the "power of drawing, passing, keeping and issuing all deeds and contracts, charter-parties and other mercantile transactions in this Province, and also of attesting all commercial instruments brought before him for public protestation, and otherwise of acting as is usual in the office of notary, and may demand, receive and have all the rights, profits and emoluments rightfully appertaining and belonging to the said calling of notary during pleasure."
Under the Act a commissioner of oaths is "authorized to administer oaths and take and receive affidavits, declarations and affirmations within the Province in and concerning any cause, matter or thing, depending or to be had in the Supreme Court, or any other court in the Province."
Every barrister of the Supreme Court of Nova Scotia is a commissioner of oaths but must receive an additional commission to act as a notary public.
"A Commissioner of Oaths is deemed to be an officer of the Supreme Court of Nova Scotia. Commissioners take declarations concerning any matter to come before a court in the Province.". Additionally, individuals with other specific qualifications, such as being a current Member of the Legislative Assembly, commissioned officer of the Royal Canadian Mounted Police or Canadian Forces make act as if explicitly being a Commissioner of Oaths.
In Quebec, civil-law notaries (notaires) are full lawyers licensed to practice notarial law. Quebec notaries draft and prepare major legal instruments (notarial acts), provide complex legal advice, represent clients (out of court) and make appearances on their behalf, act as arbitrator, mediator, or conciliator, and even act as a court commissioner in non-contentious matters. To become a notary in Quebec, a candidate must hold a bachelor's degree in civil law and a one-year Master's in notarial law and serve a traineeship (stage) before being admitted to practice.
The concept of notaries public in Quebec does not exist. Instead, the province has Commissioners of Oaths (Commissaires à l'assermentation) which serve to authenticate legal documents at a fixed maximal rate of $5.00CAD.
The Commissioner of Oaths is empowered to administer and witness the swearing of oaths or solemn affirmations in the taking of an affidavit for any potential legal matter under the provincial or state legislation.
Witnessing the signature process and certification service are common tasks for the Commissioner of Oaths. Documents and attachments may need authentication, attestation, certification or notarization.
- Areas of practices for the Commissioner of Oaths
- Statutory declarations
- Power of attorney (by declarants or deponents)
- Damaged, destroyed and lost passport statutory declaration
- Witnessing any declaration as required under the respective provincial statutes
- Recommended Consent Letter for Children Travelling Abroad
The central government appoints notaries for the whole or any part of the country. State governments, too, appoint notaries for the whole or any part of the states. On an application being made, any person who had been practicing as a Lawyer for at least ten years is eligible to be appointed a notary. The applicant, if not a legal practitioner, should be a member of the Indian Legal Service or have held an office under the central or state government, requiring special knowledge of law, after enrollment as an advocate or held an office in the department of Judge, Advocate-General or in the armed forces.
Notary public is a trained lawyer that should pass some special examinations to be able to open their office and start their work. Persian meaning of this word is سردفتر means head of the office and their assistant called دفتریار. Both these persons should have bachelor's degree in law or master's degree in civil-law.
There is archival evidence showing that public notaries, acting pursuant to papal and imperial authority, practised in Ireland in the 13th century and it is reasonable to assume that notaries functioned here before that time. In Ireland, public notaries were at various times appointed by the Archbishop of Canterbury and the Archbishop of Armagh. The position remained so until the Reformation.
After the Reformation, persons appointed to the office of public notary either in Great Britain or Ireland received the faculty by royal authority and appointments under faculty from the Pope and the emperor ceased.
In 1871, under the Matrimonial Causes and Marriage Law (Ireland) Amendment 1870, the jurisdiction previously exercised by the Archbishop of Armagh in the appointment of notaries was vested in and became exercisable by the Lord Chancellor of Ireland.
In 1920, the power to appoint notaries public was transferred to the Lord Lieutenant of Ireland. The position in Ireland changed once again in 1924 following the establishment of the Irish Free State. Under the Courts of Justice Act, 1924 the jurisdiction over notaries public was transferred to the Chief Justice of the Irish Free State.
In 1961, under the Courts (Supplemental Provisions) Act of that year, and the power to appoint notaries public became exercisable by the Chief Justice. This remains the position in Ireland, where notaries are appointed on petition to the Supreme Court, after passing prescribed examinations. The governing body is the Faculty of Notaries Public in Ireland. The vast majority of notaries in Ireland are also solicitors. A non-solicitor, who was successful in the examinations as set by the governing body, applied in the standard way to the Chief Justice to be appointed a notary public. The Chief Justice heard the adjourned application on 3 March 2009 and appointed the non-solicitor as a notary on 18 July 2011.
In Ireland notaries public cannot agree on a standard fee due to competition law. In practice the price per signature appears to be €65. A cheaper alternative is to visit a commissioner for oaths who will charge less per signature, but that is only possible where whomever is to receive a document will recognize the signature of a commissioner for oaths.
A notary public is a lawyer authorized by the Attorney General. The fees are regulated by the Notary Public (Fees) Rules 1954.
A commissioner for oaths is a person appointed by the Chief Justice under section 11 of Court of Judicature Act 1964, and Commissioners for Oaths Rules 1993.
A notary public in New Zealand is a lawyer authorised by the Archbishop of Canterbury in England to officially witness signatures on legal documents, collect sworn statements, administer oaths and certify the authenticity of legal documents usually for use overseas.
The Master of the Faculties appoints notaries in the exercise of the general authorities granted by s 3 of the Ecclesiastical Licences Act 1533 and Public Notaries Act 1833. Recommendations are made by the New Zealand Society of Notaries, which normally requires and applicant to have 10 years’ experience post admission as a lawyer and 5 years as a Law Firm Partner or equivalent.
Notaries in Sri Lanka are more akin to civil law notaries, their main functions are conveyancing, drafting of legal instruments, etc. They are appointed under the Notaries Ordinance No 1 of 1907. They must pass exam held by the Ministry of Justice and apprentice under senior notary for a period of two years. Alternatively, attorneys at law who pass the conveyancing exam are also admitted as a notary public under warrant of the Minister. The Minister of Justice may appoint any attorney at law as a Commissioner for Oaths, authorized to certify and authenticate the affidavit/documents and any such other certificates that are submitted by the general public with the intention of certifying by the Commissioner for Oath.
England and WalesEdit
After the passage of the Ecclesiastical Licences Act 1533, which was a direct result of the Reformation in England, all notary appointments were issued directly through the Court of Faculties. The Court of Faculties is attached to the office of the Archbishop of Canterbury.
In England and Wales there are two main classes of notaries – general notaries and scrivener notaries. Their functions are almost identical. All notaries, like solicitors, barristers, legal executives, costs lawyers and licensed conveyancers, are also commissioners for oaths. They also acquire the same powers as solicitors and other law practitioners, with the exception of the right to represent others before the courts (unless also members of the bar or admitted as a solicitor) once they are commissioned notaries. In practice almost all English notaries, and all Scottish ones, are also solicitors, and usually practise as solicitors.
Commissioners of oaths are able to undertake the bulk of routine domestic attestation work within the UK. Many documents, including signatures for normal property transactions, do not need professional attestation of signature at all, a lay witness being sufficient.
In practice the need for notaries in purely English legal matters is very small; for example they are not involved in normal property transactions. Since a great many solicitors also perform the function of commissioners for oaths and can witness routine declarations etc. (all are qualified to do so, but not all offer the service), most work performed by notaries relates to international matters in some way. They witness or authenticate documents to be used abroad. Many English notaries have strong foreign language skills and often a foreign legal qualification. The work of notaries and solicitors in England is separate although most notaries are solicitors. The Notaries Society gives the number of notaries in England and Wales as "about 1,000," all but seventy of whom are solicitors.
Scrivener notaries get their name from the Scriveners' Company. Until 1999, when they lost this monopoly, they were the only notaries permitted to practise in the City of London. They used not to have to first qualify as solicitors, but they had knowledge of foreign laws and languages.
Currently to qualify as a notary public in England and Wales it is necessary to have earned a law degree or qualified as a solicitor or barrister in the past five years, and then to take a two-year distance-learning course styled the Postgraduate Diploma in Notarial Practice. At the same time, any applicant must also gain practical experience. The few who go on to become scrivener notaries require further study of two foreign languages and foreign law and a two-year mentorship under an active Scrivener notary.
The other notaries in England are either ecclesiastical notaries whose functions are limited to the affairs of the Church of England or other qualified persons who are not trained as solicitors or barristers but satisfy the Master of the Faculties of the Archbishop of Canterbury that they possess an adequate understanding of the law. Both the latter two categories are required to pass examinations set by the Master of Faculties.
The regulation of notaries was modernised by section 57 of the Courts and Legal Services Act 1990.
Notarial services generally include:
- attesting the signature and execution of documents
- authenticating the execution of documents
- authenticating the contents of documents
- administration of oaths and declarations
- drawing up or noting (and extending) protests of happenings to ships, crews and cargoes
- presenting bills of exchange for acceptance and payment, noting and protesting bills in cases of dishonour and preparing acts of honour
- attending upon the drawing up of bonds
- drawing mercantile documents, deeds, sales or purchases of property, and wills in English and (via translation), in foreign languages for use in Britain, the Commonwealth and other foreign countries
- providing documents to deal with the administration of the estate of people who are abroad, or own property abroad
- authenticating personal documents and information for immigration or emigration purposes, or to apply to marry, divorce, adopt children or to work abroad
- verification of translations from foreign languages to English and vice versa
- taking evidence in England and Wales as a commissioner for oaths for foreign courts
- provision of notarial copies
- preparing and witnessing powers of attorney, corporate records, contracts for use in Britain or overseas
- authenticating company and business documents and transactions
- international Internet domain name transfers
Notaries public have existed in Scotland since the 13th century and developed as a distinct element of the Scottish legal profession. Those who wish to practice as a notary must petition the Court of Session. This petition is usually presented at the same time as a petition to practice as a solicitor, but can sometimes be earlier or later. However, to qualify, a notary must hold a current Practising Certificate from the Law Society of Scotland, a new requirement from 2007, before which all Scottish solicitors were automatically notaries.
Whilst notaries in Scotland are always solicitors, the profession remains separate in that there are additional rules and regulations governing notaries and it is possible to be a solicitor, but not a notary. Since 2007 an additional Practising Certificate is required, so now most, but not all, solicitors in Scotland are notaries - a significant difference from the English profession. They are also separate from notaries in other jurisdictions of the United Kingdom.
The profession is administered by the Council of the Law Society of Scotland under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
In Scotland, the duties and services provided by the notary are similar to England and Wales, although they are needed for some declarations in divorce matters for which they are not in England. Their role declined following the Law Agents (Scotland) Amendment Act 1896 which stipulated only enrolled law agents could become notaries and the Conveyancing (Scotland) Act 1924 which extended notarial execution to law agents. The primary functions of a Scottish notary are:
- oaths, affidavits, and affirmations
- affidavits in undefended divorces and for matrimonial homes
- maritime protests
- execution or certification for foreign jurisdictions, e.g., estates, court actions, powers of attorney, etc.
- notarial execution for the blind or illiterate
- entry of a person to overseas territories
- completion of the documentation required for the registration of a company in certain foreign jurisdictions; and
- drawing for repayment of Bonds of Debenture
In the United States, a notary public is a person appointed by a state government (e.g., the governor, lieutenant governor, state secretary, or in some cases the state legislature) and whose primary role is to serve the public as an impartial witness when important documents are signed. Since the notary is a state officer, a notary's duties may vary widely from state to state and in most cases bars a notary from acting outside their home state unless they also have a commission there as well.
In 32 states the main requirements are to fill out a form and pay a fee; many states have restrictions concerning notaries with criminal histories, but the requirements vary from state to state. Notaries in 18 states and the District of Columbia are required to take a course, pass an exam, or both; the education or exam requirements in Delaware and Kansas only apply to notaries who will perform electronic notarizations.
A notary is almost always permitted to notarize a document anywhere in the state where their commission is issued. Some states simply issue a commission "at large" meaning no indication is made as to from what county the person's commission was issued, but some states do require the notary include the county of issue of their commission as part of the jurat, or where seals are required, to indicate the county of issue of their commission on the seal. Merely because a state requires indicating the county where the commission was issued does not necessarily mean that the notary is restricted to notarizing documents in that county, although some states may impose this as a requirement.
Some states (Montana, Wyoming, North Dakota, among others) allow a notary who is commissioned in a state bordering that state to also act as a notary in the state if the other allows the same. Thus someone who was commissioned in Montana could notarize documents in Wyoming and North Dakota, and a notary commissioned in Wyoming could notarize documents in Montana, a notary from Wyoming could not notarize documents from North Dakota (or the inverse) unless they had a commission from North Dakota or a state bordering North Dakota that also allowed North Dakota notaries to practice in that state as well.
Notaries in the United States are much less closely regulated than notaries in most other common-law countries, typically because U.S. notaries have little legal authority. In the United States, a lay notary may not offer legal advice or prepare documents - except in Louisiana and Puerto Rico - and in most cases cannot recommend how a person should sign a document or what type of notarization is necessary. There are some exceptions; for example, Florida notaries may take affidavits, draft inventories of safe deposit boxes, draft protests for payment of dishonored checks and promissory notes, and solemnize marriages. In most states, a notary can also certify or attest a copy or facsimile.
The most common notarial acts in the United States are the taking of acknowledgements and oaths. Many professions may require a person to double as a notary public, which is why US court reporters are often notaries as this enables them to swear in witnesses (deponents) when they are taking depositions, and secretaries, bankers, and some lawyers are commonly notaries public. Despite their limited role, some American notaries may also perform a number of far-ranging acts not generally found anywhere else. Depending on the jurisdiction, they may: take depositions, certify any and all petitions (ME), witness third-party absentee ballots (ME), provide no-impediment marriage licenses, solemnize civil marriages (ME, FL, SC), witness the opening of a safe deposit box or safe and take an official inventory of its contents, take a renunciation of dower or inheritance (SC), and so on.
"An acknowledgment is a formal [oral] declaration before an authorized public officer. It is made by a person executing [signing] an instrument who states that it was their free act and deed." That is, the person signed it without undue influence and for the purposes detailed in it. A certificate of acknowledgment is a written statement signed (and in some jurisdictions, sealed) by the notary or other authorized official that serves to prove that the acknowledgment occurred. The form of the certificate varies from jurisdiction to jurisdiction, but will be similar to the following:
Before me, the undersigned authority, on this ______ day of ___________, 20__ personally appeared _________________________, to me well known to be the person who executed the foregoing instrument, and he/she acknowledged before me that he/she executed the same as his/her voluntary act and deed.
Oath, affirmation, and juratEdit
A jurat is the official written statement by a notary public that they have administered and witnessed an oath or affirmation for an oath of office, or on an affidavit - that is, that a person has sworn to or affirmed the truth of information contained in a document, under penalty of perjury, whether that document is a lengthy deposition or a simple statement on an application form. The simplest form of jurat and the oath or affirmation administered by a notary are:
- Jurat: "Sworn (or affirmed) to before me this _______ day of ____________, 20__."
- Oath: "Do you solemnly swear that the contents of this affidavit subscribed by you are correct and true?"
- Affirmation (for those opposed to swearing oaths): "Do you solemnly, sincerely, and truly declare and affirm that the statements made by you are true and correct?"
In the U.S., notarial acts normally include what is called a venue or caption, that is, an official listing of the place where a notarization occurred, usually in the form of the state and county and with the abbreviation "ss." (for Latin scilicet, "to wit") normally referred to as a "subscript", often in these forms:
State of .......) )ss: County of.......)
State of ________ County of _______, to-wit:
The venue is usually set forth at the beginning of the instrument or at the top of the notary’s certificate. If at the head of the document, it is usually referred to as a caption. In times gone by, the notary would indicate the street address at which the ceremony was performed, and this practice, though unusual today, is occasionally encountered.
The California Secretary of State, Notary Public & Special Filings Section, is responsible for appointing and commissioning qualified persons as notaries public for four-year terms.
Prior to sitting for the notary exam, one must complete a mandatory six-hour course of study. This required course of study is conducted either in an online, home study, or in-person format via an approved notary education vendor. Both prospective notaries as well as current notaries seeking reappointment must undergo an "expanded" FBI and California Department of Justice background check.
Various statutes, rules, and regulations govern notaries public. California law sets maximum, but not minimum, fees for services related to notarial acts (e.g., per signature: acknowledgment $15, jurat $15, certified power of attorney $15, et cetera) A finger print (typically the right thumb) may be required in the notary journal based on the transaction in question (e.g., deed, quitclaim deed, deed of trust affecting real property, power of attorney document, et cetera). Documents with blank spaces cannot be notarized (a further anti-fraud measure). California explicitly prohibits notaries public from using literal foreign language translation of their title. The use of a notary seal is required.
Notarial acts performed in Colorado are governed under the Notaries Public Act, 12-55-101, et seq. Pursuant to the Act, notaries are appointed by the Secretary of State for a term not to exceed four years. Notaries may apply for appointment or reappointment online at the Secretary of State's website. A notary may apply for reappointment to the notary office 90 days before their commission expires. Since May 2010, all new notaries and expired notaries are required to take an approved training course and pass an examination to ensure minimal competence of the Notaries Public Act. A course of instruction approved by the Secretary of State may be administered by approved vendors and shall bear an emblem with a certification number assigned by the Secretary of State's office. An approved course of instruction covers relevant provisions of the Colorado Notaries Public Act, the Model Notary Act, and widely accepted best practices. In addition to courses offered by approved vendors, the Secretary of State offers free certification courses at the Secretary of State's office. To sign up for a free course, visit the notary public training page at the following link. A third party seeking to verify the status of a Colorado notary may do so by visiting the Secretary of State's website at the following link. Constituents seeking an apostille or certificate of magistracy are requested to complete the form found on the following page before sending in their documents or presenting at the Secretary of State's office.
Florida notaries public are appointed by the Governor to serve a four-year term. New applicants and commissioned notaries public must be bona fide residents of the State of Florida, and first time applicants must complete a mandatory three-hour education course administered by an approved educator. Florida state law also requires that a notary public post bond in the amount of $7,500.00. A bond is required in order to compensate an individual harmed as a result of a breach of duty by the notary. Applications are submitted and processed through an authorized bonding agency. Florida is one of three states (Maine and South Carolina are the others) where a notary public can solemnize the rites of matrimony (perform a marriage ceremony).
The Florida Department of State appoints civil law notaries, also called "Florida International Notaries", who must be Florida attorneys who have practiced law for five or more years. Applicants must attend a seminar and pass an exam administered by the Florida Department of State or any private vendor approved by the department. Such civil law notaries are appointed for life and may perform all of the acts of a notary public in addition to preparing authentic acts.
Notaries public in Illinois are appointed by the Secretary of State for a four-year term. Also, residents of a state bordering Illinois (Iowa, Indiana, Kentucky, Missouri, Wisconsin) who work or have a place of business in Illinois can be appointed for a one-year term. Notaries must be United States citizens (though the requirement that a notary public must be a United States citizen is unconstitutional; see Bernal v. Fainter), or aliens lawfully admitted for permanent residence; be able to read and write the English language; be residents of (or employed within) the State of Illinois for at least 30 days; be at least 18 years old; not be convicted of a felony; and not had a notary commission revoked or suspended during the past 10 years.
An applicant for the notary public commission must also post a $5,000 bond, usually with an insurance company and pay an application fee of $10. The application is usually accompanied with an oath of office. If the Secretary of State's office approves the application, the Secretary of State then sends the commission to the clerk of the county where the applicant resides. If the applicant records the commission with the county clerk, they then receive the commission. Illinois law prohibits notaries from using the literal Spanish translation in their title and requires them to use a rubber stamp seal for their notarizations. The notary public can then perform their duties anywhere in the state, as long as the notary resides (or works or does business) in the county where they were appointed.
A notary public in Kentucky is appointed by either the Secretary of State or the Governor to administer oaths and take proof of execution and acknowledgements of instruments. Notaries public fulfill their duties to deter fraud and ensure proper execution. There are two separate types of notaries public that are commissioned in Kentucky. They are Notary Public: State at Large and Notary Public: Special Commission. They have two distinct sets of duties and two different routes of commissioning. For both types of commissions, applicants must be eighteen (18) years of age, of good moral character (not a convicted felon) and capable of discharging the duties imposed upon him/her by law. In addition, the application must be approved by one of the following officials in the county of application: a Circuit Judge, the Circuit Court Clerk, the county Judge/Executive, the County Clerk, a county Magistrate or member of the Kentucky General Assembly. The term of office for both types of notary public is four years.
A Notary Public: State at Large is either a resident or non-resident of Kentucky who is commissioned to perform notorial acts anywhere within the physical borders of the Commonwealth of Kentucky that may be recorded either in-state or in another state. In order to become a Notary Public: State at Large, the applicant must be a resident of the county from which he/she makes application or be principally employed in the county from which he/she makes the application. A completed application is sent to the Secretary of State's office with the required fee. Once the application is approved by the Secretary of State, the commission is sent to the county clerk in the county of application and a notice of appointment is sent to the applicant. The applicant will have thirty days to go to the county clerk's office where they will be required to 1.) Post either a surety or property bond (bonding requirements and amounts vary by county) 2.) Take the Oath/Affirmation of Office and 3.) File and record the commission with the county clerk.
A Notary Public: Special Commission is either a resident or non-resident of Kentucky who is commissioned to perform notorial acts either inside or outside the borders of the Commonwealth on documents that must be recorded in Kentucky. The main difference in the appointment process is that, unlike a Notary Public: State at Large, a Notary Public: Special Commission is not required to post bond before taking the oath/affirmation nor are they required to be a resident or employed in Kentucky. In addition, where a Notary Public: State at Large is commissioned directly by the Secretary of State, a Notary Public: Special Commission is appointed by the Governor on the recommendation of the Secretary of State. It is permitted to hold a commission as both a Notary Public: State at Large and a Notary Public: Special Commission, however separate applications and filing fees are required.
A Kentucky Notary Public is not required to use a seal or stamp and a notarization with just the signature of the notary is considered to be valid. It is, however, recommended that a seal or stamp be used as they may be required on documents recorded or used in another state. If a seal or stamp is used, it is required to have the name of the notary as listed on their commission as well as their full title of office (Notary Public: State at Large or Notary Public: Special Commission). A notary journal is also recommended but not required (except in the case of recording protests, which must be recorded in a well-bound and indexed journal).
Louisiana notaries public are commissioned by the Governor. They are the only notaries to be appointed for life. The Louisiana notary public is a civil law notary with broad powers, as authorized by law, usually reserved for the American style combination "barrister/solicitor" lawyers and other legally authorized practitioners in other states. A commissioned notary in Louisiana is a civil law notary that can perform/prepare many civil law notarial acts usually associated with attorneys and other legally authorized practitioners in other states, except represent another person or entity before a court of law for a fee (unless they are also admitted to the bar). Notaries are not allowed to give "legal" advice, but they are allowed to give "notarial" advice - i.e., explain or recommend what documents are needed or required to perform a certain act - and do all things necessary or incidental to the performance of their civil law notarial duties. They can prepare any document a civil law notary can prepare (to include inventories, appraisements, partitions, wills, protests, matrimonial contracts, conveyances, and, generally, all contracts and instruments in writing) and, if ordered or requested to by a judge, prepare certain notarial legal documents, in accordance with law, to be returned and filed with that court of law.
Maine notaries public are appointed by the Secretary of State to serve a seven-year term. Maine is one of three states (Florida and South Carolina are the others) where a notary public can solemnize the rites of matrimony (perform a marriage ceremony).
Maryland notaries public are appointed by the governor on the recommendation of the secretary of state to serve a four-year term. New applicants and commissioned notaries public must be bona fide residents of the State of Maryland or work in the state. An application must be approved by a state senator before it is submitted to the secretary of state. The official document of appointment is imprinted with the signatures of the governor and the secretary of state as well as the Great Seal of Maryland. Before exercising the duties of a notary public, an appointee must appear before the clerk of one of Maryland's 24 circuit courts to take an oath of office.
A bond is not required. Seals are required, and notary is required to keep a log of all notarial acts, indicating the name of the person, their address, what type of document is being notarized, the type of ID used to authenticate them (or that they are known personally) by the notary, and the person's signature. The notary's log is the only document for which a notary may write their own certificate.
When having a person make an affidavit, state law requires the person state the phrase "under penalty of perjury."
Minnesota notaries public are commissioned by the Governor with the advice and consent of the Senate for a five-year term. All commissions expire on 31 January of the fifth year following the year of issue. Citizens and resident aliens over the age of 18 years apply to the Secretary of State for appointment and reappointment. Residents of adjoining counties in adjoining states may also apply for a notary commission in Minnesota. Notaries public have the power to administer all oaths required or authorized to be administered in the state; take and certify all depositions to be used in any of the courts of the state; take and certify all acknowledgments of deeds, mortgages, liens, powers of attorney and other instruments in writing or electronic records; and receive, make out and record notarial protests. The Secretary of State's website () provides more information about the duties, requirements and appointments of notaries public.
Montana notaries public are appointed by the Secretary of State and serve a four-year term. A Montana notary public has jurisdiction throughout the states of Montana, North Dakota, and Wyoming. These states permit notaries from neighboring states to act in the state in the same manner as one from that state under reciprocity, e.g., as long as that state grants notaries from neighboring states to act in their state. [Montana Code 1-5-605]
The Secretary of State is charged with the responsibility of appointing notaries by the provisions of Chapter 240 of the Nevada Revised Statutes. Nevada notaries public who are not also practicing attorneys are prohibited by law from using "notario", "notario publico" or any non-English term to describe their services. (2005 Changes to NRS 240)
Nevada notary duties: administer oaths or affirmations; take acknowledgments; use of subscribing witness; certify copies; and execute jurats or take a verification upon oath or affirmation.
The State of Nevada Notary Division Page provides more information about duties, requirements, appointments, and classes.
Notaries are commissioned by the State Treasurer for a period of five years. Notaries must also be sworn in by the clerk of the county in which they reside. A person can become a notary in the state of New Jersey if they: (1) are over the age of 18; (2) are a resident of New Jersey OR is regularly employed in New Jersey and lives in an adjoining state; (3) have never been convicted of a crime under the laws of any state or the United States, for an offense involving dishonesty, or a crime of the first or second degree, unless the person has met the requirements of the Rehabilitated Convicted Offenders Act (N.J.S.A 2A:168-1). Notary applications must be endorsed by a state legislator.
Notaries in the state of New Jersey serve as impartial witnesses to the signing of documents, attests to the signature on the document, and may also administer oaths and affirmations. Seals are not required; many people prefer them and as a result, most notaries have seals in addition to stamps. Notaries may administer oaths and affirmations to public officials and officers of various organizations. They may also administer oaths and affirmations in order to execute jurats for affidavits/verifications, and to swear in witnesses.
Notaries are prohibited from predating actions; lending notary equipment to someone else (stamps, seals, journals, etc.); preparing legal documents or giving legal advice; appearing as a representative of another person in a legal proceeding. Notaries should also refrain from notarizing documents in which they have a personal interest.
Pursuant to state law, attorneys licensed in New Jersey may administer oaths and affirmations
New York notaries are empowered to administer oaths and affirmations (including oaths of office), to take affidavits and depositions, to receive and certify acknowledgments or proof of deeds, mortgages and powers of attorney and other instruments in writing; to demand acceptance or payment of foreign and inland bills of exchange, promissory notes and obligations in writing, and to protest these (that is, certify them) for non-acceptance or non-payment. They are not empowered to marry couples, their notarization of a will is insufficient to give the will legal force, and they are strictly forbidden to certify "true copies" of documents. Every county clerk's office in New York must have a notary public available to serve the public free of charge.
Admitted attorneys are automatically eligible to be notaries in the State of New York, but must make an application through the proper channels and pay a fee.
New York notaries initially must pass a test and then renew their status every 4 years.
A notary in the Commonwealth of Pennsylvania is empowered to perform seven distinct official acts: take affidavits, verifications, acknowledgments and depositions, certify copies of documents, administer oaths and affirmations, and protest dishonored negotiable instruments. A notary is strictly prohibited from giving legal advice or drafting legal documents such as contracts, mortgages, leases, wills, powers of attorney, liens or bonds. Pennsylvania is one of the few states with a successful Electronic Notarization Initiative. For more information, visit the Secretary of the Commonwealth's website. Note that as of 9 Jan 2011 Pennsylvania is accepting new applicants for this program.
South Carolina notaries public are appointed by the Governor to serve a ten-year term. All applicants must first have that application endorsed by a state legislator before submitting their application to the Secretary of State. South Carolina is one of three states (Florida and Maine are the others) where a notary public can solemnize the rites of matrimony (perform a marriage ceremony) (2005). If you live in South Carolina but work in North Carolina, Georgia or Washington, DC, these states will permit you to become a notary public for their state. South Carolina does not offer this provision to out-of-state residents that work in South Carolina(2012).
Utah notaries public are appointed by the Lieutenant Governor to serve a four-year term. Utah used to require that impression seals be used, but now it is optional. The seal must be in purple ink.
A Virginia notary must either be a resident of Virginia or work in Virginia, and is authorized to acknowledge signatures, take oaths, and certify copies of non-government documents which are not otherwise available, e.g. a notary cannot certify a copy of a birth or death certificate since a certified copy of the document can be obtained from the issuing agency. Changes to the law effective 1 July 2008 imposes certain new requirements; while seals are still not required, if they are used they must be photographically reproducible. Also, the notary's registration number must appear on any document notarized. Changes to the law effective 1 July 2008 will permit notarization of electronic signatures.
On 1 July 2012, Virginia became the first state to authorize a signer to be in a remote location and have a document notarized electronically by an approved Virginia electronic notary using audio-visual conference technology by passing the bills SB 827 and HB 2318.
In Washington any adult resident of the state, or resident of Oregon or Idaho who is employed in Washington or member of the United States military or their spouse, may apply to become a notary public. Applicants for commissioning as a Notary Public must: (a) be literate in the English language, (b) be endorsed by three adult residents of Washington who are not related to the applicant, (c) pay $30, (d) possess a surety bond in the amount of $10,000, (e) swear under oath to act in accordance with the state's laws governing the practice of notaries. In addition, the director of licensing is authorized to deny a commission to any applicant who has had a professional license revoked, has been convicted of a serious crime, or who has been found culpable of misconduct during a previous term as a notary public. A notary public is appointed for a term of 4 years.
Wyoming notaries public are appointed by the Secretary of State and serve a four-year term. A Wyoming notary public has jurisdiction throughout the states of Wyoming and Montana. These states permit notaries from neighboring states to act in the state in the same manner as one from that state under reciprocity, e.g. as long as that state grants notaries from neighboring states to act in their state.
A Maryland requirement that to obtain a commission, a notary declare their belief in God, as required by the Maryland Constitution, was found by the United States Supreme Court in Torcaso v. Watkins, 367 U.S. 488 (1961) to be unconstitutional. Historically, some states required that a notary be a citizen of the United States. However, the U.S. Supreme Court, in the case of Bernal v. Fainter 467 U.S. 216 (1984), declared that to be impermissible.
In the U.S., there are reports of notaries (or people claiming to be notaries) having taken advantage of the differing roles of notaries in common law and civil law jurisdictions to engage in the unauthorized practice of law. The victims of such scams are typically illegal immigrants from civil law countries who need assistance with, for example, their immigration papers and want to avoid hiring an attorney. Confusion often results from the mistaken premise that a notary public in the United States serves the same function as a Notario Publico in Spanish-speaking countries (which are civil law countries, see below). For this reason, some states, like Texas, require that notaries specify that they are not Notario Publico when advertising services in languages other than English. Prosecutions in such cases are difficult, as the victims are often deported and thus unavailable to testify.
Certain members of the United States Armed Forces are given the powers of a notary under federal law (10 U.S.C. § 1044a). Some military members have authority to certify documents or administer oaths, without being given all notarial powers (10 U.S.C. § 502, § 936, § 1031). In addition to the powers granted by the federal government, some states have enacted laws granting notarial powers to commissioned officers.
Embassies and consulatesEdit
Civil law jurisdictionsEdit
The role of notaries in civil law countries is much greater than in common law countries. Civilian notaries are full-time lawyers and holders of a public office who routinely undertake non-contentious transactional work done in common law countries by attorneys/solicitors, as well as, in some countries, those of government registries, title offices, and public recorders. The qualifications imposed by civil law countries are much greater, requiring generally an undergraduate law degree, a graduate degree in notarial law and practice, three or more years of practical training ("articles") under an established notary, and must sit a national examination to be admitted to practice. Typically, notaries work in private practice and are fee earners, but a small minority of countries have salaried public service (or "government" / "state") notaries (e.g., Ukraine, Russia, Baden-Württemberg in Germany, certain cantons of Switzerland).
Civil law notaries have jurisdiction over strictly non-contentious domestic civil-private law in the areas of property law, family law, agency, wills and succession, and company formation. The point to which a country's notarial profession monopolizes these areas can vary greatly. On one extreme is France (and French-derived systems) which statutorily give notaries a monopoly over their reserved areas of practice, as opposed to Austria where there is no discernible monopoly whatsoever and notaries are in direct competition with attorneys/solicitors.
In the few United States jurisdictions where trained notaries are allowed (such as Louisiana, Puerto Rico), the practice of these legal practitioners is limited to legal advice on purely non-contentious matters that fall within the purview of a notary's reserved areas of practice.
Upon the death of President Warren G. Harding in 1923, Calvin Coolidge was sworn in as President by his father, John Calvin Coolidge, Sr., a Vermont notary public. However, as there was some controversy as to whether a state notary public had the authority to administer the presidential oath of office, Coolidge took the oath, again, upon returning to Washington.
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