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Posted by  Marian_in_CA on 7/24/11 10:42pm
"Since CWs cannot benefit financially from the transaction, nor can they be named in the document, that means beneficiaries and heirs (immediate family and to a degree extended family) cannot be CWs......."
Well, that's given. And, I did impart that to him. However, if the document doesn't involve any of those things (and in this case it didn't) then there is nothing preventing it. We shouldn't assume that a person is a beneficiary or an heir... that's not our business. IMO, we should just be giving them information and letting them make the decision for themselves.
What I tell people with CWs is that they have to swear under oath to 5 things... and if they aren't comfortable with any of those 5, then they would not be an appropriate CW.
Those 5 things are:
1. The person signing the document is the person named in the document.
2. That they personally know the person signing the document.
3. The the person does not possess a form of identification appropriate for notarization.
4. They they reasonably believe that the person's situation is such that it is very difficult or impossible for the person to obtain another form of identification.
5. They are not named in the document nor do they have any financial interest in the document being signed.
I also point out to them, before they take the oath, that they are swearing to those 5 things as if they were in court in front of a judge, and I point out the part of the handbook that states (Civil Code 1185) that, "Any person convicted of perjury... shall forfeit any financial interest in
the document."
If after telling them all this, they still want to proceed... I'm fine with it. I can't tell them whether or not they can BE CWs unless they lack proper ID themselves, are clearly named in the document or don't want to swear to all 5 facts. Beyond that, the responsibility lies with them... not me. I've also recently been handing out a small piece of paper to to them with the same information.
I don't see how, after making this clear to them, there would be any liability on the notary's part. As long as you notate everything in the journal... and properly issue the oath, you've done your job.
Besides, how many friends and neighbors would actually be able to swear to all 5 things without some pretty intimate knowledge of the person?
The point being that UPS dude was adamant that family members were 100% not allowed to be CWs... and that's not true. |
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