Posted by sueharke on 12/24/12 1:01am
Msg #447678

What would you have done

In the last 3 days I've had 2 calls for GNW for senior citizens. Neither had a current, unexpired CA ID . Neither had an DL issued within the last 5 years. Neither had a Senior Citizens ID issued by the CA DMV or passport. I asked about ID before driving to the location to avoid having the potential client to pay a travel fee if there was not an acceptable ID (because of past posting on this forum). I considered using CW, but the signer could get an ID from the State of CA; hence, I did not do it. I recommended the family member calling help get the senior citizen an acceptable ID. Any suggestions are welcome for these two cases and for future requests.

Reply by pdl/cali on 12/24/12 1:04am
Msg #447679

CW

Reply by Linda_H/FL on 12/24/12 6:30am
Msg #447686

Depends on their circumstances...

CA CW law is similar to FL's so,

If they're in a hospital or nursing home, I'll suggest CW's.

If they're in their private home, and they're not bedridden, then no can do and I suggest either to them or their family member that they get down to the office and get a renewed license or state ID.

Reply by Marian_in_CA on 12/24/12 10:23am
Msg #447697

Every situation is different...

When you say "they could get an ID from the state of CA" -- is that YOU deciding that or their family members? I've started to become extremely cautious of this because it's difficult to know all of the nuances of a person's situation. While it may be obvious to us that a person should just get themselves to the DMV for an ID, there may be circumstances preventing them from doing that that they don't necessarily want or need to share with us. One reason could be as simple as having an arrest warrant.

In CA, it's the CWs who swear to the facts of the person's situation under oath, not the notary. So, before I use a CW, I will talk to them and spell out what they're swearing to. If THEY swear, under oath, that THEY BELIEVE it is difficult or impossible, for a person to obtain proper ID, then that's what they swear to and the requirement is filled.

What we think they can do is, frankly, irrelevant.

Here's another example. Where I live, we're an hour away from a DMV office and real public transportation. A trip to the DMV involves a good half-day trip or more and lots of gas and money. A senior without a car or the ability to drive that distance, and on a fixed income may have a very difficult time asking anyone for help in that regard. It could be pride. Some of it might be that they don't have anyone that can take an entire day off to help them. That might be easily surmountable to some people... for other people, organizing a trip like that might be very difficult depending on their circumstances.

In many cases, we just nee to let them know that they can get a senior ID card, and they weren't even aware that they could do that... so they make arrangements. In other cases, the idea of getting that done may be daunting, difficult or impossible... to them or their family members.

Remember, that oath that the CA CW takes is that the CW believes it is difficult or impossible to obtain another form of ID... not the notary.

I had a lawyer tell me recently that unless I was prepared to personally drive that person to the DMV myself and make sure they had all of their documents in order, then I need to be more careful about how I offer and decline the use of CWs.

We also have to consider the timing issue. Since we can't use the paper ID, it's not like they can get an ID the same day... it takes several weeks, and that kind of a time burden or delay may be an issue for certain situations that involve a notarized signature.

Reply by SheilaSJCA on 12/24/12 12:07pm
Msg #447698

excellent and thoughtful post Marian n/m

Reply by sueharke on 12/24/12 12:26pm
Msg #447699

Re: excellent and thoughtful post Marian

Thank everyone for their reply. I found in an earlier message that the CA DMV will make a home or hospital visit for senior for a Senior ID Card as a possible solution to the family if they wish the information.

Also, in one of the cases the use of witnesses to signing the form and a copy of the expired DL was accepted by the mortuary.

Additional information, in both cases the potential signer lived in a home with their family near at least 3 offices of the CA DMV within a 20 minutes drive (the wait at the office is not considered in this comment as we cannot control this issue, other than make an appointment for a shorter wait).

Reply by Marian_in_CA on 12/24/12 1:38pm
Msg #447707

Re: excellent and thoughtful post Marian

" I found in an earlier message that the CA DMV will make a home or hospital visit for senior for a Senior ID Card as a possible solution to the family if they wish the information. "

I was told by the DMV recently that this may no longer be possible. They will only go if the person is 100% bedridden or in a skilled nursing facility that cannot transport them. If they can get out of their home or are mobile, for any reason, the DMV won't sent anyone out.

Reply by ananotary on 12/24/12 12:50pm
Msg #447702

This is your **interpretation** of the use

of Credible Witnesses. Again, just like the line items per notary act that you are very black and white on, many interpret both of these situations differently. The CA SOS needs to be much clear on this to avoid interpretation by notaries that are not lawyers.

You do make some good points with your interpretation, but I am much tighter with my use of CW's.

Reply by Marian_in_CA on 12/24/12 1:25pm
Msg #447705

Like I said...

Every situation is different. I believe I was pretty clear that the MAJORITY of the time people are more than capable of obtaining an ID. But, what I was saying is that there are times when it's just not possible. And, in the handbook it seems clear to me that the CW is the one who is swearing to the facts of the situation, not the notary. That's the point I was trying to make... I think that a lot of the time, the notaries automatically say, "no way" because *they* assume that a person has the ability to obtain proper ID.

The reason I say that si because I was brought in to a situation where CWs were the only option for a time sensitive matter. The attorney involved said that they had been lectured by several notaries that they could not help them because the person was perfectly capable of obtaining ID, she just didn't "want" to because it would be inconvenient. Well, the attorney called the Secretary of State's office, explained the situation and they were told that CWs were perfectly okay because it was the witness' job to swear to the facts. It made me look at this a little bit differently.

I think I posted about it the other day... but this is what I'm talking about. There was a woman who had a warrant out for her arrest. They explained the whole situation to me, but I won't get in to all of that. She was going to turn herself in, but prior to doing so, she wanted to get some affairs settled (involving children and money), privately and it involved notarized documents. Her ID had long been expired (she'd been on the run with her kids) and she knew she couldn't go in to get a current one because she'd be arrested on the spot. She also knew that if she were brought in to custody before the arrangements were made, things would get much more difficult and her children would be turned over to public agencies, etc. The attorney had arranged CWs and I was completely comfortable notarizing her signature on these documents. When I went in there, I could tell the situation was pretty sire, and I knew the CWs were telling the truth. They knew her, knew the FULL situation and knew there was no possible way she could obtain ID in time.

Could she have gone to get ID? Sure. But If I've got multiple people who are willing to swear under oath that she can't and I'm comfortable with the situation, I will use CWs. What I was saying is that I do not automatically reject the idea nor tell people...in essence, "Don't be lazy, go get an ID." without getting a full picture of the situation. Don't get me wrong, I tell people that all the time (nicely, of course)... because most of the time, there really is nothing preventing them from getting it done.

I rarely use CWs anyway, and when I do I'm pretty careful about it... but I'm always comfortable when I do because I know there are few, if any, other options. I don't just offer it up to anyone... and only when all other options are exhausted.

Reply by ananotary on 12/24/12 1:41pm
Msg #447708

As I said, different interpretations. n/m

Reply by Marian_in_CA on 12/24/12 1:58pm
Msg #447712

Re: As I said, different interpretations.

Yeah, the problem is that the phrase "very difficult or impossible" doesn't just mean "impossible" and "very difficult" can mean a whole lot of things to different people.

And Per Civil Code 1185b, "...it is the reasonable belief of the witness that the circumstances of the person making the acknowledgment are such that it would be very difficult or impossible for that person to obtain another form of identification."

It doesn't say that the Notary has to believe it... it says that the *witness* must believe it and swear to it. That's all I'm saying.

I have had a person who was asked to be a witness, once I went through the requirements, actually refuse. He said he'd be more than happy to take the person to get an ID. He said he wouldn't lie under oath... it would be that difficult on them to get it done.

Reply by ananotary on 12/24/12 4:03pm
Msg #447717

I wouldn't rely so strictly on an **interpretation** that a

lawyer has on the use of CW's and a heresay phone conversation he/she had with the SOS. There have been know to be unscrupulous lawyers. Just sayin'.

Reply by Marian_in_CA on 12/24/12 4:32pm
Msg #447720

Re: I wouldn't rely so strictly on an **interpretation** that a

Oh, I'm not. I'm saying that the experience made me look at the requirements again and review the wording. And both the handbook and the civil code say it's up the to the witness, as I've quoted. Everything I've found and read say that it is the belief of the witness.

If anyone can find something that says that Notary can decide it, then I'd love to see it.

What I have is this. From the workbook (pg 21) (but this is the same language in the law and handbook), "Satisfactory evidence is the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the individual is not the individual he or she claims to be and (A) paper identification documents meeting certain requirements or (B) the oath of a single credible witness or (C) the oaths of two credible witnesses."

Our handbook says, "The identity of the signer can be established by the oaths of two credible witnesses whom the notary public does not personally know."

The workbook says, "The signer’s identity may be established by the oaths or affirmations of one or two credible witnesses, or the signer may present one of the identification documents as stated in California Civil Code sections 1185(b)(3) and (b)(4)."

So, in everything I've found...nothing really says that the use of CWs are to be so limited. It is listed as a viable option. As long as the requirements are meant (willing witnesses to swear to the facts under oath), then it is considered acceptable method of identity verification, just as other forms of ID are acceptable as long as the required elements are there.

Reply by LKT/CA on 12/24/12 5:34pm
Msg #447724

Re: Like I said...

<<< There was a woman who had a warrant out for her arrest....>>>

This story is an extreme case and a far cry from Sue's post where she had info the senior was able to get current ID from the DMV. I would have no problem with credible witnesses in that scenario. However, there's too much identity theft and fraud to not set the bar very high for CWs in today's society.

My husband and I bought cell phones for our sons for Christmas, plus I needed a better phone. Opening a new account - the checks and balances, credit check, verification of ID, had to speak directly to the cell carrier agent at the store - now they're asking questions from the credit report over the phone (i.e. Which of the following cities have you lived in? You worked at one of the following employers?, What is the age of <my husband>?). I bought a CAR recently and didn't go thru this!

Reply by LKT/CA on 12/24/12 12:59pm
Msg #447703

Re: Every situation is different...

<<<While it may be obvious to us that a person should just get themselves to the DMV for an ID, there may be circumstances preventing them from doing that that they don't necessarily want or need to share with us. One reason could be as simple as having an arrest warrant. In other cases, the idea of getting that done may be daunting, difficult or impossible... to them or their family member.>>>

None of that is the notary's problem. Do you think the bank (or other establishments) cares about the difficultness or ease of getting an ID? They (or other establishments) require current ID or it's a no-go.

<<<We also have to consider the timing issue. Since we can't use the paper ID, it's not like they can get an ID the same day... it takes several weeks, and that kind of a time burden or delay may be an issue for certain situations that involve a notarized signature.>>>

Again, not the notary's problem. A senior ID is good for 10 years....T E N years. If it takes all day to deal with this...that's one day in T E N years. Seniors (or their family members) must do their due diligence like everyone else and if they (or their family members) haven't taken care of business then they run into all the hassles and annoyances that go with not having taken care of business.

A notary has a job to do whether the signer is a senior citizen or 30 years old. Emotions have to be taken out of it to do an adequate job and protect the signer of the document. If that senior is **not bedridden, is ambulatory and has family or a neighbor**, it is THEIR responsibility to do their due diligence and if they do not, then they must go thru the same avenues a 30 year old without current ID must go thru. Based on Sue's post, she had information that the senior could get current ID and that's what addressing. My post may sound cold and callous, but it is for the protection of the senior that they (or the family members) do their due diligence.

Reply by Don Courtney on 12/24/12 5:52pm
Msg #447726

Risk from the notaries perspective

This is agreat discussion, and a subject that I have often pondered. Marion provides an excellent interpretation of the letter of the law in Ca. I agree with the facts she presents.

I also feel it is important to consider the potential litigation risk a request to use credible witnesses for id represents. There have been a few occasions that my instincts raise big red flags. In these cases the witnesses are arranged for in advance of contacting me. IF there is intent to defraud, it is likely that the witnesses are in on the scam. Since a power of attorney always seems to be involved, the oaths of these witnesses does not overule my suspicions and common sense regarding the risk I may be myself into.

Following the letter of the law and using the CW may end up with me defending my commission, livelyhood and personal assets in a courtroom after the witnesses are nowhere to be found. The risk vs. reward involved lead me lean to the side of caution.

Reply by LKT/CA on 12/24/12 7:17pm
Msg #447729

Re: Risk from the notaries perspective

<<<Following the letter of the law and using the CW may end up with me defending my commission, livelyhood and personal assets in a courtroom after the witnesses are nowhere to be found.>>>

Those are great points. However, CWs cannot be used unless *they* have valid, gov't issued ID, which is recorded in our journals. We also get their signatures in our journals so with *their* ID info recorded, they can be tracked down. I notarized for a private investigator who said he can find **anybody**....if that person so much as ordered a pizza, he can find them.

Reply by JanetK_CA on 12/25/12 3:11am
Msg #447734

Re: Every situation is different...

"Since we can't use the paper ID,..."

Things do change over time. I was recently presented with a paper DL extension that had all the required elements for use as ID - including the photo, signature, etc. Imagine my surprise!! I guess even the DMV is getting with technology! I wonder if all offices are issuing those types of DL extensions... Those could make lots of people's lives a bit easier.

Reply by LKT/CA on 12/24/12 12:43pm
Msg #447701

I would have done exactly what you did...asked questions and upon learning the senior was ambulatory and could get to the DMV (*somehow*), I would have informed the caller to make an appt with the DMV to get a senior ID card. Not the notary's problem they let an ID expire and have to go through the hassle to get one.

Reply by ananotary on 12/24/12 1:10pm
Msg #447704

100% Agree! Imagine the fraut that could be perpetrated

by the loose use of CW's?