Posted by BrendaTx on 4/14/12 10:05am
Msg #417909
Help me out CA notaries
I am looking for a legal reference that says that CA notaries must
-observe a signer for signs of duress when taking an acknowledgment
-know that the signer understands the document
I have looked through
--Government Code
Sections 8200‐8230;
--Civil Code Sections 1185‐1193;
--Notary Public Handbook
Why can't I find this?
| Reply by Les_CO on 4/14/12 10:26am
Msg #417912
I don’t know about CA but it IS in the Colorado Notary Handbook under Part VI Acknowledgments….SECOND and THIRD pages 9 and 10 You can look it up online.
| Reply by BrendaTx on 4/14/12 10:30am
Msg #417913
Thanks, Les. Looking for CA. It is in TX, too.
| Reply by Yoli/CA on 4/14/12 11:15am
Msg #417917
Interesting ...
Just went through my handbook. Maybe I, too, am missing it. However, I was unable to find anything addressing that issue. Hmmmmm ....
| Reply by jba/fl on 4/14/12 11:20am
Msg #417918
Re: Interesting ...
I hop someone will do FL's handbook - I feel uninspired regarding this common sense act.
| Reply by jba/fl on 4/14/12 11:31am
Msg #417919
correction: ...hope, not hop n/m
| Reply by BrendaTx on 4/15/12 10:36am
Msg #417966
Like TX, Florida covers it, Jules. n/m
| Reply by Belinda/CA on 4/14/12 11:39am
Msg #417921
Whether it can be found outright in the codes and laws...
Whether it can be found outright in the codes and laws doesn't really matter. Your job is to prevent fraud.
A) If a person is not apparently willing, what could that mean but fraud in some shape or form. Coercion. Would you sign someone who appeared to be signing against their will even though they were going to go ahead with it? Would you notarize a signature and they were not voluntarily executing the document? I don't think so. You will end up in court and how would you defend yourself? (I would however sign someone if I myself felt threatened. Then I would go tell the police.)
This call requires a common sense judgment. Would you sign someone being unduly influenced and go home and sleep tonight knowing they signed away their rights or property? Me thinks not.
B) If a person may not know what they are signing smacks of fruad.
I had two signers the other day. She kept hiding the husband from me and when I finally got her to get him it was quite apparent he did not speak English. She was hiding him from me. Idiot. When I asked him what he was signing she would speak to him in Japanese. Then he would answer "lease agreement." Ya Right! She was having him deed over all their real property to her as her sole and separate property.
Is the signer aware of the repercussions of the document being signed and notarized? You have to be sure they are. Or you are party to fraud and who knows what else.
Plus, you are not an attorney or physician. You can only determine if the signing party appears to be capable. When signing in a facility I also speak with someone on staff to be certain if I find myself in a gray area. I even get it in writing from the doctor concerning competency if there is concern.
We are not commissioned only to ID a person and be blind to everything else going on. If that were the case why have notaries. Plus, this is all based on a layperson's judgment.
There is my humble, don't-know-everything, still learning, non-attorney opinion.
Why did you ask CA notaries this question?
Just ran across this in the Notary Public Handbook put out by the CA SOS (pg17).
"Grounds for Denial, Revocation, or Suspension of Appointment and Commission - for any of these reasons.... executing a false certificate.... making a false certificate or writing containing statements known to be false...."
| Reply by LKT/CA on 4/14/12 12:39pm
Msg #417924
10 Star Post!! - Belinda/CA
Very well written. I found something from the XYZ that supports what you wrote: http://www.nationalnotary.org/resources_for_notaries/what_is_a_notary/index.html
When the XYZ writes something that makes sense, I have to give them credit for it.
| Reply by LKT/CA on 4/14/12 12:54pm
Msg #417927
Brenda, I couldn't find any specific code or rule in the handbook that addresses your question. My layperson's guess is that there may be no code or rule *spelled out* because the purpose of the office of notary public IS <what you addressed>. In other words, it "goes without saying" that notaries should ensure that the person understands what they are signing and that there's no undue pressure on them to sign.
I remember a signing I completed a couple of years ago - the borrower signed the last doc and then shook his head and said, "I don't understand any of these papers". So I turned the stack back over and RE-walked him through the docs - this time, using much simpler phrases. He was so appreciative of my willingness to help him understand what he was signing. He thanked me over and over for helping it all make sense. I felt good about helping him understand the docs. It was a win-win for both of us.
Hopefully an attorney will chime in and reply: If there is no written law to something, does its *purpose* become the law.
| Reply by BrendaTx on 4/15/12 10:38am
Msg #417967
Thanks, Lisa. n/m
| Reply by JanetK_CA on 4/14/12 1:06pm
Msg #417930
Brenda, I don't think there is anything in there to find on this subject. In fact, I've asked the SOS office about this in the past and the stock answer I got was that we are not required - or qualified - to make a definitive judgment on a person's mental state or capacity to make a decision.
BUT, having said that, I tend to agree with Belinda. I think it's more a matter of ethics for us, rather than law - except for the statutes that she referenced. But it's definitely a very gray area, and one for which we need to use lots of not-so-common common sense.
Two general notary situations I've experienced come to mind. One was a signing requested by an Asian man for a woman he claimed was his mother. She didn't speak English, so that was a no-brainer, here. He was very insistent and something in that situation, as I thought about it later, made me think that he might have been a caregiver and not her son.
In another case, a woman wanted me to notarize a POA for her mother, who to me seemed to be suffering from dementia. Plus, the mom kept saying that she didn't want to sign it, while the daughter was insisting that she had to so that they could get her bills paid. I have no idea what other dynamics might have been going on in that situation, but I wanted no part of it.
These may be extreme examples, but I think they illustrate that we do have the right to say no and perhaps even an obligation to do so. But it's always going to be a judgment call - and one that we should take great care in making, imo.
| Reply by Priscilla Witman on 4/14/12 1:16pm
Msg #417932
From what I can remember, I learned the concepts of "willingness" and "understanding" the documents in the class I took. I'm still looking in the handbook as well.
I remember thinking as I was studying for my exam that not everything that was covered in the class is actually in the handbook in the exact same format. I'd imagine that's why (at least in CA) we have to take a class in addition to studying the handbook for the exam before commission; not everything is spelled out 1-2-3 in the handbook.
| Reply by JanetK_CA on 4/14/12 1:21pm
Msg #417933
It may also be a good idea to keep in mind that teachers are not gods and no one is perfect...
(BTW, I'm a teacher by education, so no disrespect intended to those in the teaching profession!)
| Reply by leeinla on 4/14/12 1:24pm
Msg #417934
In this situation common sense should prevail. We are commissioned to protect the public. The use of a notary public is to prevent fraud. Not using common sense guidelines to prevent fraud will not help you in court. I am not ant attorney, but this is my opinion. I think the Secretary of State and the Attorney General should get together and give us a better legal interpretation on the matter. The S.O.S does not want get involved in legal issues and that is why the office is so vague about the issue.
| Reply by Priscilla Witman on 4/14/12 1:30pm
Msg #417935
I agree these classes are not all-inclusive of what we really do every day, and the teachers are just humans. My class was actually taught by a JD. I got a lot out of it, but some of what was taught, I couldn't find in the handbook.
| Reply by Belinda/CA on 4/14/12 5:16pm
Msg #417943
Still curious why a TX notary cares about CA law. Mind
sharing?
| Reply by LKT/CA on 4/14/12 9:28pm
Msg #417956
Re: Still curious why a TX notary cares about CA law. Mind
It's kind of interesting comparing the different state's laws. Pennsylvania allows translators while California doesn't. California has specific acknowledgment and jurat wording while some other states don't - those state's notaries can complete whatever notarial cert wording is on a doc. Louisiana notaries can draft docs, CA cannot. Some states don't require a seal, journal, or thumbprints. Florida notaries can claim capacity, CA notaries cannot. Some other state's notaries can hold dual commissions, CA cannot.
Kinda interesting stuff, don't ya think?
| Reply by jba/fl on 4/14/12 10:23pm
Msg #417959
Brenda is a writer probably doing some research
for all things notorial.
| Reply by BrendaTx on 4/15/12 10:10am
Msg #417963
Belinda, I'm sharing.
I came across this curious statement yesterday while doing research. I was flabbergasted. My computer bit the dust and I had to get that fixed before I took time to reply.
I have learned something new and that while it makes a lot of sense to us that all signers in all states should be watching for duress and comprehension, Marian's apparently right about the myth part. No arguments out of me for either side...I'm still licking my knowledge wounds.
| Reply by Marian_in_CA on 4/14/12 6:23pm
Msg #417945
There is no such requirement in California...
The idea of "willingness" is an urban myth like the more than/less than rule. They are "rules" perpetuated by teachers that may or may not be actual law.
That said, we are generally covered under the "ability to communicate directly" rule... if the notary and the signer cannot communicate directly, then it can easily be defended if a notary refuses.
As for "understanding" the document? That's really not our business, either. HOWEVER, I can generally touch on this when I ask, "Tell me about the nature of the document." That's because, in CA, we are required to record that in our journal. Rather than just reading it myself, I ask the person directly what it is. If they say, "I don't know," that's red flag. I then let them know that they need to be able to communicate these things to me directly.
As far as determining actual willingness or understanding? We cannot do it in California because that would begin to delve in to legal capacity and legal decisions.
As I've always said... the notarization doesn't mean anything as far the legality or enforceability of a document. If the person signing is not legally capable (for whatever reason) of signing, then the notarization is NOT going to change that. That can only be determined by the courts.
Now after all of that... this is why it's really important to take copious notes of a situation in your journal if you suspect something off. In CA, we can only refuse if we have FIRST HAND knowledge that something is illegal. we can't just assume it's illegal.
I was told by an attorney that if I ever suspected fraud or duress, to complete the signing as normal and then report your suspicions to the appropriate authority. At the very least, take good notes.
It is beyond the scope of our job to make legal determinations, and we could (in CA) lose our commissions and get in to trouble ourselves if we refuse to notarize for someone because we think they are under duress IF they otherwise meet all of the legal requirements for notarization.
| Reply by Marian_in_CA on 4/14/12 6:44pm
Msg #417948
Re: There is no such requirement in California...
Let me clarify the "understanding" part here with an example.
In CA, we are able to notarize documents in a foreign language. The contents of the documents are NONE of our concern. If somebody hands me a document written in Korean, for example, I would have no idea what it was. If the signer is able to communicate with me directly and tells me it's a loan document, than that's what I write in my journal, and complete the notarization as usual because every legal requirement (per CA) has been met. For all I know, the guy be signing a recipe or the alphabet. But if he signs it, has proper ID and tells me what it is (true or not), I can't refuse because *I* don't understand the document myself.
What it the document is really something else entirely and the signer was being duped, too? How is that my fault, as the notary? It isn't! It may very well be entirely fraudulent and illegal... but I don't really care because I only ID'd the signer and wrote down what HE told me.
It's NONE of our business to determine if somebody truly understands what they are signing. Again, that's a court issue.
That's because (in CA) we are protected from this kind of thing by limiting our duties. That's why we have such strict certificate language and other laws.
Remember, in CA, as long as all of the legal requirements are met (proper ID, direct communication that includes describing the nature of the document, etc.) then we can get in to MAJOR trouble if we refuse a legal request for notarization. If you refuse and you tell the SOS, "Well, I didn't think he really understood what he was signing," they are going to nail you to the wall unless you can use actual legal requirements to defend yourself.
| Reply by Claudine Osborne on 4/14/12 8:10pm
Msg #417953
Re: There is no such requirement in California...
Since Ca is the topic here I have a question about CA notary journals..What journals are being used in CA? Are they like the journals sold here on Not Rot or are they specific CA journals? Thanks
| Reply by JanetK_CA on 4/14/12 9:51pm
Msg #417958
Re: There is no such requirement in California...
A California notary can use any journal they wish. It's the notary's responsibility to make sure it includes the necessary elements. There's nothing to prevent someone from even creating their own.
| Reply by JanetK_CA on 4/14/12 10:40pm
Msg #417961
Re: There is no such requirement in California...
IMO, there's one other issue here that is left open to interpretation. The law doesn't define who needs to be making the request. And let's be honest; it's a virtual impossibility to address every possible eventuality.
As best I can tell, this is the entirety of the statement that says we can't refuse a notary request:
"(a) It is the duty of a notary public, when requested:
...(2) To take the acknowledgment or proof of [type of document]..."
So far, the way I've chosen to interpret that is that if someone asks me to notarize their own signature on a document, I will do it, unless they can't provide proper ID. BUT, as far as I'm concerned, when the request comes from a third party for someone ELSE'S signature to be notarized on a document - especially a POA - I feel that we're opening the floodgates for fraud if we don't use at least some discretion, if there's a reason for concern. That's when we have to make a judgment call. The vast majority of the time, it will be a non-issue, but I don't believe we're obligated to proceed if there's some reason we feel there may be a problem.
But having said all that, the advice given to Marian by the attorney to proceed with the notarization, then report it to the authorities, may be very good advice. On the other hand, I think back to the lady with possible dementia who didn't want to sign the documents her daughter gave her. For all I know, it could have been that the daughter was looking out for her mother's best interests and a report to authorities might have only made a difficult situation even worse. I ended up referring her to an attorney.
| Reply by BrendaTx on 4/15/12 10:35am
Msg #417965
Another good point, Janet.
It's not always as cut and dried and we think...just when we think that we've got our arms around it, boom...blown to smithereens.
Your point is quite valid, too. It would not be ok in Tx, but in California, and more than 20 other states, it's not necessary to determine duress...in over 25 it is not necessary to determine if they know what they are signing.
Those are two points for which notaries might want to check their *state handbooks* and *state laws*. Teachers and XYZs are not always right about every state. I think this amazed me because I thought that a CA based teaching organizations would have it right about CA. Apparently not. No criticism...it happens, but it was just very enlightening.
| Reply by JanetK_CA on 4/17/12 1:21am
Msg #418076
Re: Another good point, Janet.
I think our state handbook may have changed over the years in regard to this issue. (I know other things have changed, as well, in addition to the changes in certificate and ID requirements.) I recall some mention about not discriminating against members of the public when providing notary services, and I think that may be behind the statement that it's our duty, "when requested" to notarize. There used to be a mention of a "proper request", and a fee paid, too, I believe.
I don't know if it's true (and after a super long day today, I don't have the energy or inclination to look it up right now). Does anyone else remember anything along this line? This goes back to at least when I got my first commission about 12 years ago. Anyway, it may be possible that what is being interpreted as a requirement to not refuse to notarize, originally wasn't at all about the issue of capacity, but rather about non-discriminatory service.
I hope this makes some sense, 'cause my brain is fried tonight! 
| Reply by LKT/CA on 4/15/12 9:22pm
Msg #417984
Re: There is no such requirement in California...
<<<....the advice given to Marian by the attorney to proceed with the notarization, then report it to the authorities, may be very good advice. On the other hand, I think back to the lady with possible dementia who didn't want to sign the documents her daughter gave her.>>>
Janet, I would have to say that I would err on the side of caution, refuse to notarize where I *suspected* fraud and take my chances explaining to the SOS and/or a judge that I saw glaring red flags that led me to believe there was a train wreck in the making my goal is the stop fraud and protect the signer. I think what would make a difficult situation worse is to allow a false/dishonest transaction to be fufilled.
Reporting a suspected fraudulent transaction AFTER THE FACT will only backfire on the notary. The first question the authorities will ask the notary is "If you knew/suspected/believed something wasn't right with either the people involved or documents, WHY oh WHY on earth would you proceed with the notarization?"
That attorney's advice given to Marian, IMHO, was bad advice.
| Reply by VT_Syrup on 4/16/12 7:16am
Msg #417991
Re: There is no such requirement in California...
The Uniform Law Commission recently revised their suggested law on notarizations. I followed some of the discussions leading up to the current model law. They recognized the problem of states that impose a duty on notaries to act unless they can find a specific legal reason to refuse. They felt that notaries put in this situation would have to notarize even when they were very suspicious of a transaction because they might not be able to find a legally sufficient excuse to refuse. So the commission decided to make it easy for notaries to refuse: "A notarial officer may refuse to perform a notarial act unless refusal is prohibited by law other than this [act]."
The act may be found at
http://www.nccusl.org/Act.aspx?title=Revised%20Uniform%20Law%20on%20Notarial%20Acts
| Reply by LKT/CA on 4/14/12 9:30pm
Msg #417957
Re: There is no such requirement in California...
<<<As far as determining actual willingness or understanding? We cannot do it in California because that would begin to delve in to legal capacity and legal decisions.>>>
When signers VOLUNTEER that info (either they don't understand what they're signing or they really don't want to sign) that puts the notary in the a whole different ballgame IMHO.
| Reply by BrendaTx on 4/15/12 10:11am
Msg #417964
Good point. n/m
| Reply by VT_Syrup on 4/15/12 11:12am
Msg #417970
not capacity again...
On this board, any time a California notary wonders whether to notarize (or in this case, not notarize), they always seem to say it would require them to determine capacity, which they're not allowed to do. About half the time, what they're discussing has nothing to do with capacity. A suffix like Jr. has nothing to do with capacity, nor does a maiden name, nor does an alias. Willingness and understanding are, for the most part, nothing to do with capacity. OK, I grant you, one might be willing to do something for oneself but unwilling to do it as a representative of certain organizations (for example, donate to a political campaign for oneself, but not while representing the League of Women Voters). Or, a document that wants one to sign as attorney-in-fact might be too complicated for one to understand. But those situations are very unusual.
| Reply by VT_Syrup on 4/15/12 11:25am
Msg #417972
Re: not capacity again... maybe I was too hasty
What is being discussed is a lay observation of whether a person understands a document. If the reason for non-understanding is the document is just to complex for an ordinary untrained person to understand, then legal capacity is not involved. But if the person is mentally impaired, then the person might not be able to understand any document, not just the one in his hand. Also, a person with sufficiently serious mental problems does not have the legal capacity to agree to a contract. So there is a certain similarity to a notary deciding a would-be signer lacks understanding of a particular document, and a general legal incapacity to mental disease or defect.
| Reply by JanetK_CA on 4/15/12 6:35pm
Msg #417980
Two different kinds of capacity
The restriction in California against notarizing "capacity" of an individual involves a completely different definition of "capacity". That would refer to someone signing in their capacity as a "trustee", for example, or corporate president, etc. And the application of that restriction simply means that we can't include that capacity as part of the name that gets filled into the notary certificate. So if some well-meaning person pre-fills my notary certificate with "John Doe, Trustee" (as included in the vesting on a DOT), then I need to cross that out or replace the certificate. Many of us also loosely interpret that to include marital status, as that's something for which we don't have proof and can't certify to under penalty of perjury. I'm not sure all will agree with me on that part, but I think that is widely done here.
The subject of mental capacity is not addressed anywhere in CA notary law that I'm aware of, but we're advised by our SOS that we're not responsible or qualified to make that kind of an interpretation. You make some very good points in your next post below on that subject, btw.
| Reply by BrendaTx on 4/15/12 10:58pm
Msg #417986
These kinds of discussion make me happy.
I hate to pirate one of Hugh's schticks, but....
I'm sure that one or more of my ex-husbands would have liked knowing that this is all that it took.
Ba dop ba biiiiiing.
| Reply by Susan Fischer on 4/16/12 2:42am
Msg #417989
Nice distinction, JanetK CA. In OR, such capacities are
attached to the veracity of the signer to a document, not the proof to the Notary Public as a "certification" of a right to sign.
Courts have long recognized "Jane Doe, being of sound mind and body," and "John Doe, a single man," for instances, no? Important terms of art in so many points of law.
| Reply by VT_Syrup on 4/16/12 7:06am
Msg #417990
Re: Nice distinction, JanetK CA; "representative capacity"
It turns out that California civil code sec. 1189 (c), which allows using an acknowledgement certificate required by another state if the document is to be filed in that state, contains the limitation "provided the form does not require the notary to determine or certify that the signer holds a particular REPRESENTATIVE CAPACITY or to make other determinations and certifications not allowed by California law." (My emphasis). So at least as far as this section goes, determining mental capacity is neither specifically allowed, nor specifically prohibited, and any such prohibition must be found in some other section of the law. Also, there is a big difference between declining to notarize because a person appears to lack understanding of a particular document at a particular moment in time, and certifying in an acknowledgement certificate that a person did understand something.
| Reply by 101livescan on 4/16/12 10:08am
Msg #417995
Re: Two different kinds of capacity
Good discussion here, Janet.
Also, not in print, but we cannot notarize for people who are not aware of what they are signing..whether under the influence of prescribed or recreational drugs, alcohol, or mentally incapacitated. There must be some responsibility and best judgement by the notary on a case by case basis.
I don't do a lot of assisted care facility visits to notarize documents, but this certainly calls for some sort of discussion with the requesting party, the mental state of the person who is signing the document, and their level of awareness and knowledge of what they will be signing.
| Reply by VT_Syrup on 4/16/12 11:14am
Msg #418001
Re: Two different kinds of capacity
It seems immensely foolish for California to have a written requirement the law (or maybe the notary manual) to fulfill notarization requests, and have one or more unwritten exceptions.
| Reply by Richard Schauer on 4/16/12 1:52pm
Msg #418018
WILLINGNESS AND COMPREHENSION
California Notaries are not required to determine the “competence,” of a document signer, but commonsense judgment on the document signer’s awareness is required. California notary School strongly recommends that all Notary Publics ensure the document signers are willing to sign the document and have the ability to comprehend the document. A document signer who is unable to convince the Notary public that they are both willing and have sufficient comprehension of the document should be refused service by the Notary Public. The Notary Public must enter into their journal the reason for refusal of service.
This is from an authorized class for the California notary School Basic Notary Class. In class I ask the question "If you are in a courtroom and the judge askes what made you think the person was willing and able to sign a doument?"
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