Posted by HisHughness on 2/12/12 4:46pm
Msg #411551

Judging what is "best." Long boring post.

This post was occasioned by the thread pertaining to relatives as witnesses, but since I think it has applications well beyond that, I'm making it a separate thread.

One of the posters said it is the "best" practice not to use family members as witnesses. I don't necessarily disagree with that statement, but "best" assumes that other alternatives are available to be considered and discarded. The problem is that the "best" alternative may not always be available.

If an attorney or CPA or other such professional tells a client that such-and-such is the "best" practice, there is always a good chance the attorney is saying that the practice is the one that will "best" avert the possibility of the lawyer being sued. However, it may well not be the "best" practice for the CLIENT in any given situation.

The case at issue involved a granddaughter who witnessed a POA. She was not an interested party <to the transaction>. One of the posters said she would not have used the granddaughter because as a relative she was not a disinterested party. The problem, as I see it, is that nowhere does the law define the granddaughter as an <interested> party.

It seems to me that it is the responsibility of a notary public to <acknowledge> when a potential witness may not be a disinterested witness. But there is a vast gulf between simply pointing out a potential conflict, <evaluating> for the signer the consequences of using the witness, and/or <accepting or rejecting> a witness.

When a notary public rejects a witness, the NP may well have torpedoed a transaction. The notary public has gone even further than an attorney who advises a client on what is "best." At least with the attorney's advice, the client can accept or reject it. If the NP rejests a witness, though, based on the NP's judgment that it is "best" not to use the witness, then the NP has assumed a role in the signer's business that I think is wholly unjustified. Assume the worst case scenario, that a multi-million-dollar transaction rests upon getting a notarized signature before the FedEx pickup in five minutes, and the only witnesses available are both related to the signer. I shudder to think of the liability the NP would incur by refusing to use those witnesses.

Frankly, I am not even sure that it is the NP's responsibility to ascertain that witnesses are transactionally or relationally barred. My gut feeling is that determining eligibility -- not capacity, but eligibility -- is the responsibility of the signer, not the NP. I'll leave it up to superior minds to tell me whether I'm wrong.

However, not only my gut but my brain, my heart, my spleen and my liver tell me that a notary should not refuse to notarize simply because it is the "best" practice not to use a given category of witness. If other witnesses are available, fine, use them. Otherwise, "best" practice does not mean the only practice; it means you choose the "best" alternative among those <that are available>.

Reply by Karla/OR on 2/12/12 4:53pm
Msg #411552

I'm with you - and your post was not boring - never are. n/m

Reply by Lee/AR on 2/12/12 5:46pm
Msg #411554

Certainly don't disagree, but if an option presents itself, I'd certainly want to use it.

Reply by BrendaTx on 2/12/12 5:56pm
Msg #411555

Long boring post - II

I think that this is a great post, Hugh. It is highly worth reading and should be carefully considered by all notaries. It gives us all a reason to hit the books.

"Frankly, I am not even sure that it is the NP's responsibility to ascertain that witnesses are transactionally or relationally barred."

Can Notaries Ascertain that Witnesses are barred?

Many notary handbooks discuss witnesses to miscellaneous documents that are notarized...I did not look for a POA, but for any documents to show that notaries are instructed to use disinterested witnesses in cases such as signing by mark, or working with people with disabilities. I did not drill down to see if I could re-structure this to suit my purposes for a POA, or go to the actual notary laws of each state to seek a way to prop up my earlier assertion.

It seems that in notary handbooks below, the first three that I had bookmarked, that there's generally a reference to what Oregon's handbook says about signing by X, "Witnesses should be without financial or other beneficial interest in the transaction. It is preferable that they not be related to the signer."

It stands to reason that if Oregon suggests that a notary can request or determine that a witness is what I noted above, then the Oregon notary might also be able to work from that angle on a POA for grandpa. Again, I think that Karla needs to call her state office.

Oregon
http://www.filinginoregon.com/pages/forms/notary_guide/2011_Notary_Guide.pdf
When signing by mark, for instance:
On the Document: There must be two witnesses in addition to the notary, who of course must be
present when the signer makes an “X” on the signature line. One witness then writes the signer’s name next to the mark or symbol. Each witness signs the document as a witness to the mark.
Witnesses should be without financial or other beneficial interest in the transaction. It is preferable that they not be related to the signer

Nebraska - Witnesses to various documents that are notarized must be disinterested.
http://www.sos.ne.gov/business/notary/pdf/notary_handbook.pdf

Florida - Witnesses to various documents that are notarized must be disinterested, uninterested, or impartial, depending on situation.
http://www.flgov.com/wp-content/uploads/notary/ref_manual23-40.pdf

Texas - Apparently, a Texas notary is competent to consider this in the case of an individual with disability. Since a POA in Texas does not need witnesses, as far as I know, this is moot for Karla's purpose, but it's proof that notaries are able to discuss a witness's interest.

Sec. 406.0165. SIGNING DOCUMENT FOR INDIVIDUAL WITH DISABILITY. (a) A notary may sign the name of an individual who is physically unable to sign or make a mark on a document presented for notarization if directed to do so by that individual, in the presence of a witness who has no legal or equitable interest in any real or personal property that is the subject of, or is affected by, the document being signed. The notary shall require identification of the witness in the same manner as from an acknowledging person under Section 121.005, Civil Practice and Remedies Code.
(b) A notary who signs a document under this section shall write, beneath the signature, the following or a substantially similar sentence:
"Signature affixed by notary in the presence of (name of witness), a disinterested witness, under Section 406.0165, Government Code."

It would be good to know who was appointed AIF in Karla's POA. Was it a relative of the granddaughter? I think if so, that creates even more interest and impartiality. My "knee jerk" (or, learned response) is that the cleanest way for my signer to go is to call a neighbor, the preacher, or pay a witness.

As I told Karla in response to her PM --

1-I'm jaded; I have observed that people do not put their affairs in order and then want a rabbit pulled out of a notary hat. Their emergencies are not my emergencies. When I am concerned about a family transaction, I don't hesitate to move away from it.

2-I still need to work and my notary seal makes me a little bit more valuable. I am not retired and do not have the luxury of relaxing on standards that I have been schooled on, whether they are right or wrong. My advisers, Texas attorneys, have given me much input on this.


===========================
The question of intra-family notary witnessing and impartiality according to "Me".

This applies to notaries, of course, but a notary is a witness and a witness is the subject of discussion.

Years ago when I was a wee notary, I notarized many documents for my mother. It is primarily why I got a commission. Bad idea. Fortunately, I am her only child and so far, she and I are on good terms, so it is unlikely to ever bite me.

I argued that it was bull that I should not have done that. Later, I came to understand that a family relationship makes a family member biased or prejudiced about family. I don't know a single family member that I have zero feelings for. That makes me impartial about that person.

When Calvin Coolidge was sworn in by his father, the family relationship was determined to be a problem and he was re-sworn properly.

To quote myself, "...public perception and trust were considerations. The oath of the presidency had to be above reproach and it could easily be argued that it was administered with a conflict of interest and that the oath was invalid.

Colonel Coolidge’s conflicting interest was the interest in his son, an interest that is almost always stronger than financial gain. Legally, according to some, this interest corrupted his impartiality.
To avoid a lack of trust by the public, the oath of office was re-administered so that there would be no question to the validity of President Coolidge’s oath of presidency.

If members of the public perceive that a notary act is invalid because of impartiality or a conflict of interest, that lack of trust may weaken or even invalidate the act.This would have been disastrous for the country in the case of the validity of President Coolidge’s oath of office and presidency."

==================

So, aside from what I've stated before, this is how I came to my conclusions.

Reply by HisHughness on 2/12/12 6:22pm
Msg #411557

Re: Long boring post - II

It appears to me that the fundamental question remains: Is it the notary's responsibility to ascertain whether a person in an "interested" party, or is it the signer's? And if it is the signer's determination, is it the notary's responsibility to accept or reject a witness; or, if the signer is okay with it, can a notary proceed with a notarization with an ineligible witness?

It is a big step from a manual, or a statute, saying "Any person within X degree of consanquinity is an interested party with respect to witnessing a document," to saying that it is the notary's responsibility for <enforcing> that provision. It is a far far greater step from saying that some witnesses are preferred over others, though the others aren't legally barred from witnessing, to the notary saying that the notary unilaterally will reject otherwise legal witnesses.

Reply by BrendaTx on 2/12/12 8:03pm
Msg #411568

Re: Long boring post - II

Your fundamental questions are good debate material. I respect your position on this, and in eight years I can only remember this one notary issue where we are not even close to being on the same page. Neither of us like it much when notaries appear to be excessively controlling of a notarization and throw up those "fancied obstacles" that you've mentioned. It is very good advice for notaries, in my opinion.

*Is it the notary's responsibility to ascertain whether a person in an "interested" party, or is it the signer's?*

I do not know and I am not afraid to say so. Can you say for certain that you know the answer to that? Would you stake another notary's commission on it?

*And if it is the signer's determination, is it the notary's responsibility to accept or reject a witness; or, if the signer is okay with it, can a notary proceed with a notarization with an ineligible witness?*

It beats the heck out of me. I would say that in certain situations if the notary knows that such is not the case, there is very good reason to reject the notarization. For instance, where the notary's act is involved in certifying that the witness is or is not disinterested such as in some of the acts in handbooks I cited. But again, it would be foolish to rely on my opinion.

Hugh, do you know the absolutely correct answer?

To my own rhetorical question: Is a family member ALWAYS partial/subjectively involved/interested and excluded from serving as a witness or a notary? No! Not according to most states' laws--that is my opinion, not a fact. I really don't know. I don't think that anyone does.

For the sake of posterity and the OP, I'm going to make a couple of suggestions.

-Relying on my *opinion*, or Hugh's, is probably somewhat foolish. Hugh and I are cool and all that, but don't do it.

-When a notary makes a judgment call, he or she should just deal with it and use the PM feature. Or, put it into a different type of post in which he or she is explaining a situation and not assigning a possible mistake to his- or herself. AND...

-...if a notary is unsure about any aspect of his or her duties, he or she should consult his or her notary public administrator's office or seek advice from an attorney.

-Neither an answer from the NPA, nor an attorney's answer will be the written-in-stone last word, but you've gotten advice from a respected source that you can rely on in the future. It shows responsibility, common sense, and due diligence. Make a note of it, move on and use that advice in the future.

-Don't ever feel pressured by circumstances that you are the least uncomfortable with.

-What's done is done. You'll know next time. Move on.

Reply by JanetK_CA on 2/12/12 8:50pm
Msg #411577

Re: Long boring post - II

I agree, Hugh, with your assessment of the fundamental question. And I think your points in the original post make a lot of sense. I'd probably lean towards the belief that it's the notary's responsibility to inform the signer as to the requirements, but not to enforce them. That would seem to me to be more consistent with how we carry out the rest of our duties.

One possible parallel might be the way CA law addresses the use of credible witnesses. One of our requirements for use of a CW is that the person also not have any beneficial interest in the transaction. There are no references to the relationship of the person other than that they know the signer to be the party named in the doc. Our only obligation towards the CWs is to take proof of their identity and to put them under oath regarding the various requirements. That seems to eliminate the notary's responsibility for determining whether or not that witness meets the criteria and puts that obligation on the signer and the witnesses.

I suppose it could be argued, though, that that should be a different standard, since they're serving as satisfactory evidence of identity - not just witnessing that the person signed.

Reply by BrendaTx on 2/12/12 9:15pm
Msg #411581

Where the heck is Marian?

I think she could straighten this all out. (I'm not even sure that PAW would have gotten into this one!)


In all things notary that are not spelled out to the letter, there is the NotaryRotary answer that's NOT very practical and there is the practical answer that should NOT be discussed on NotaryRotary.

Reply by MW/VA on 2/12/12 6:32pm
Msg #411559

I can agree with much of what you've posted here, Hugh. IMHO, the key is that we are permitted to think, and do need to make sure we're not involved in an illegal transaction. Some may feel that crosses the line when witnesses are people who could benefit financially from the transaction. That's always been my position of "interested" or "disinterested" parties. It's sometimes hard for the signer to produce witnesses that are not family members. In my experience, people on staff at nursing homes, etc. often will not act as witness, even though they are only witnessing a signature. Many are concerned about being called into court.
I think you know that a particular organization uses the term "best practices", and IMO that is where a lot of the misinformation originates.
Thanks for your thoughts on the subject.

Reply by LKT/CA on 2/12/12 6:58pm
Msg #411560

<<<I think you know that a particular organization uses the term "best practices", and IMO that is where a lot of the misinformation originates.>>>

Which particular organization is this? I've only heard the term "best practice" from the attorneys I've networked with.

Reply by Susan Fischer on 2/12/12 7:23pm
Msg #411562

Here's one:

http://www.algop.org/node/1714

Reply by LKT/CA on 2/12/12 7:39pm
Msg #411564

Re: Here's one:

Is that the one MW/VA is referring to? Because that's the question I asked of her - which **particular** organization......

Reply by JanetK_CA on 2/12/12 7:53pm
Msg #411566

Re: Here's one:

I suspect it's the organization many of us euphemistically refer to as "XYZ"... Roughly a decade ago, when I was still a member, I remember seeing a list of items that I think were referred to as "best practices" or something very similar, that were intended to be guidelines for notaries to follow. Problem is, they didn't seem to take into consideration the different state laws and that what might be a "best practice" in one state, may not be so in another.

Reply by MW/VA on 2/12/12 8:08pm
Msg #411569

Yes, Janet, that's what I was referring to. ;-) n/m

Reply by LKT/CA on 2/12/12 8:41pm
Msg #411576

Re: Here's one:

<<<Problem is, they didn't seem to take into consideration the different state laws and that what might be a "best practice" in one state, may not be so in another. >>>


I agree with you...but IMHO, *this* best practice (witnesses unrelated to principal signers by blood, marriage, or adoption) transcends all states, countries, continents, planets, galaxies, and universes.

While the subject is really about impartial witnesses, I still share a few experiences with regards to notarizing. Years ago, I completed a loan signing for a young couple - the man mentioned to me his mother was a notary and he asked escrow if she could do the notarizing and was told NO by the TC. As you know, Janet, it is perfectly legal to notarize for family in CA, as long as the notary has no financial benefit and is not named in the transaction.

Just recently I did GNW where I traveled to the home of a lady who needed a POA for her bedridden husband. Very nice home and he was in a hospital bed in the living room. The married daughter was there too - as were two neighbors to be witnesses for the signature by mark. The daughter told me she's a notary but told her mom it was better to find an outside notary for this POA - especially because of the signature by mark.

I've also done GNW where the signers had an instruction page and one of the directives was, "Do not sign this document until you are in front of a notary public. The notary public must not be related to you." I do the mobile notarizing for an estate planning attorney - 30 years in the business and I've networked with other attorneys (real estate, family law, general practice).

I trust their guidance and advice.

Reply by HisHughness on 2/12/12 8:55pm
Msg #411578

Okay, my last post on this subject

Lisa, I know that you call in advance and explain about witnesses. I know that you have fellow notaries, friends, neighbors, associates and various homeless people who will witness for you if necessary. I know that if pushed to the wall, you would call in your evil twin to witness.

But what do you do when all of that fails, and you are either required to use a relative as a witness, or tell the signer you will not notarize? What happens then: Is the "best practice" to not sign, in your view? And please, this is an either/or: It has to be signed right now, and there is NO alternative but to use the relative. Do you notarize?

Reply by LKT/CA on 2/12/12 9:21pm
Msg #411583

Re: Okay, my last post on this subject

<<<But what do you do when all of that fails, and you are either required to use a relative as a witness, or tell the signer you will not notarize? What happens then: Is the "best practice" to not sign, in your view? And please, this is an either/or: It has to be signed right now, and there is NO alternative but to use the relative. Do you notarize?>>>

If there are no written instructions forbidding using a relative as a witness - and because it is legal in CA to do so - ***based on your scenario*** above, YES, I would use a relative as a witness. I never said I would not notarize.

Reply by HisHughness on 2/12/12 9:43pm
Msg #411584

We're on the same page n/m

Reply by LKT/CA on 2/12/12 10:00pm
Msg #411585

To add....

Regarding this: <<<Assume the worst case scenario, that a multi-million-dollar transaction rests upon getting a notarized signature before the FedEx pickup in five minutes, and the only witnesses available are both related to the signer. I shudder to think of the liability the NP would incur by refusing to use those witnesses.>>>

An emergency on the client's part is NOT an emergency on the notary's part. That this client procrastinated to the absolute last minute of the FedEx deadline is THEIR problem and no judge will hold a notary liable for someone else's procrastination.

Brenda mentioned that an unsophisticated client she dealt with knew better to not use family as witnesses. I'd expect that someone involved in a multimillion dollar deal would have the marbles and shrewdness to pull a twenty dollar bill out of their pocket and offer it whomever as at arms length in the FedEx office to be the witness. They'd have five people willing to be their witness in a millisecond.

BTW, I simply ask the witness if they are related to the client and take their word for it if they say NO. If they lie, it's on them. I don't enforce anything. As far as refusing witnesses - it has never gotten to that. Have never rejected any witness because when I inform the client ahead of time, they have unrelated witnesses at the appointment. Also, it makes sense to them to have non-relatives witness their transaction. So in four years, I've never rejected witnesses.

Reply by HisHughness on 2/12/12 10:26pm
Msg #411588

Retraction time: We're not even in the same novel

If a signer tells me he wishes to use witnesses who are not prohibited by law from serving in that capacity, even if he tells me he knows it is not the "best practice," I'm going to use those witnesses. It is HIS document that might be invalidated, not mine; it is HIS call, not mine; the consequences of that call are HIS consequences, not mine. I don't care whether he procratinates, incubates, decimates, permeates, regurgitates, procreates or emasculates: When I reach the point where I have become so risk-averse that I start telling a signer how to conduct his business, it is time for me to rack my stamp.

Reply by LKT/CA on 2/13/12 6:26pm
Msg #411665

Re: Retraction time: We're not even in the same novel

<<<If a signer tells me he wishes to use witnesses who are not prohibited by law from serving in that capacity, even if he tells me he knows it is not the "best practice," I'm going to use those witnesses.>>>

Good...go for it. No one told you NOT to use a non-relative witness. Do what your state laws allow you to do.

Reply by jba/fl on 2/12/12 8:29pm
Msg #411574

Re: Here's one:

"Chapman has been a champion for notaries since taking office as secretary of state. She established the state’s first conference for notaries and has spoken on the..."

Isn't Alabama the state that just decided that a journal was no longer necessary? Kind of contradictory, don't you think.

Reply by jba/fl on 2/12/12 9:02pm
Msg #411579

Re: Here's one:

Msg #333057 posted by Michelle in 2010 said AL does not require journal, etc.....

There was a state though recently that changed some of their laws and notary usage procedure and said that the journal is no longer required. I'll continue searching unless someone else can remember off the top of their head, etc.

Reply by jba/fl on 2/12/12 9:14pm
Msg #411580

Found it -was Alabama

Msg #389730 Raised their fee, took away journal requirement.

Reply by Susan Fischer on 2/12/12 10:13pm
Msg #411587

Nice hijack; this isn't about journals. Link came up

in Google of Notarial Best Practices - which, still didn't answer her question about the 'xyz' org, so my apologies to her.

Reply by jba/fl on 2/13/12 9:27am
Msg #411600

Re: Nice hijack; this isn't about journals. Link came up

It was an aside about your source for best practices....that you chose Alabama who, in my opinion, doesn't necessarily endorse Best Practices in all manner. An oxymoron if you will. I do see that this particular lady does endorse the journal, but the AL law does not require.

Reply by Susan Fischer on 2/13/12 12:48pm
Msg #411619

Lkt's question was: "Which particular organization is this?

I've only heard the term "best practice" from the attorneys I've networked with."

I was pointing out that the term Best Practices is commonly used outside the practice of law.

I didn't address her question about 'xyz' or its use of the term in NotaryLand.

You took a potshot, and missed.

Reply by jba/fl on 2/13/12 1:47pm
Msg #411624

Potshot? At you? you really overestimate yourself. n/m

Reply by HisHughness on 2/12/12 7:45pm
Msg #411565

Absolutely the most valuable thing about Notary Rotary...

...is that it offers us a forum for this sort of discussion. I have had many things brought to my attention that I had never considered before. I have changed my mind -- and my procedures -- several times based on discussions here. And I have had my nose rubbed in wrongheaded pronouncements from me once or twice...okay, maybe more than twice.

When talking about "best practices," I think we need to keep in mind who those practices affect. In Texas, although we must keep a journal, we are not legally required to obtain a signature from a signer, even if the "best practice" is to obtain one. Whether I follow that "best practice," though, will impact only me.

The signing that prompted this discussion involved a "best practice" that impacted the <signer,> and could have had an impact on <his> business. In those instances, I will always take the position that the "best practice" is that which enables the signer to get his business done within the confines of the law. If the "best practice" gets in the way of that, then in my view it is simply is not the "best practice." It is, in fact, pretty close to the worst practice for the signer, the notary, the transaction, and common sense.

Reply by jnew on 2/12/12 10:04pm
Msg #411586

What is best may not be a notarial function

After reading about these witness requirements, it occured to me that a lot of the pronouncements about this matter seemed to be outside the functioning role of a notary public. My first question is that other than witnessing which directly affects the acknowledgment itself, why would the notary have to decide if a witness is qualified to act. The act of witnessing is really no concern of the notary public. The NP does not assert any facts on the document concerning the witnesses and really should not be the arbiter of any dispute as to the qualifications of the witness. If the witness asserts that he is not a blood relative, spouse or domestic partner and actually is, how would that affect the notary? Is it part of the notarial responsibility? Would that issue come under UPL, advising how a non-signer completes a document? My opinon is that if your state notary statutes and/or handbook are silent on the simple witnessing of documents, the NP should be silent as well.

Reply by BrendaTx on 2/12/12 10:47pm
Msg #411589

I sent a question to my SoS.

All these questions marks...don't like 'em. I like periods.

I can get at least the fundamental question answered by this very competent lady. Stand by!

========================

Subj: Question regarding witness criteria / Sec. 406.0165 Gov't Code

Dear XXXXX:

When a witness who must have no legal or equitable interest in any real or personal property that is the subject of, or is affected by, the document being signed, is involved in the signing of the document described in the above-referenced section, I am curious about how much a notary involves him- or herself in the process of determining that the witness meets that criteria.

Does the notary refuse to notarize if he or she knows or has reason to believe that the witness does not meet this requirement? This section says, "Signature affixed by notary in the presence of (name of witness), a disinterested witness, under Section 406.0165, Government Code." That is what concerns me.

Reply by BrendaTx on 2/13/12 8:08am
Msg #411598

Not a yes or no answer.

She sent me a link to the following. But, I think that this is sufficient for each notary to answer the fundamental question for him- or herself.

Texas Administrative Code

Next Rule>>
TITLE 1 ADMINISTRATION
PART 4 OFFICE OF THE SECRETARY OF STATE
CHAPTER 87 NOTARY PUBLIC
SUBCHAPTER D REFUSAL TO PERFORM NOTARIAL SERVICES
RULE §87.30 Refusal of Requests for Notarial Services
(a) A notary is authorized to refuse to perform a notarial act if:
(1) the notary has reasonable grounds to believe that the signer is acting under coercion or undue influence;
(2) the notary has reasonable grounds to believe that the document in connection with which the notarial act is requested may be used for an unlawful or improper purpose;
(3) the notary has concerns about the capacity of the signing party to understand the contents of the document;
(4) the notary is not familiar with the type of notarization requested.
(b) A notary who is employed by a governmental body shall not perform notarial services that interfere with the notary's discharge of the notary's duties as a public employee.
(c) A notary may not refuse a request for notarial services on the basis of the sex, age, religion, race, ethnicity or national origin of the requesting party.
(d) A notary should refuse request for notarial services only after careful deliberation.

Reply by BobbiCT on 2/13/12 8:47am
Msg #411599

"Best Practices" are Recommendations / NOT law ...

As one of the original drafters of the Notary Public Code of Professional Responsibility, I will risk being tarred, feathered and boiled in oil for my PERSONAL Opinion today (by all parties, including UVW).

1. Every notary public must first look to his/her own state laws (and lawsuits that set the precident for good ideas) to CYA as a PUBLIC official who performs notarizations.

2. The "guide" that I am most familiar with and that took years in the making among a diverse group of people (who disagreed, compared viewpoints as to "why," and came to a concensus), is TO ME a recommendation based on review of nationwide state laws, lawsuits, years of experience in different industries and settings, and what would work best "in general." The particular recommendations are based on experience and a desire to keep both notaries and the general public "safe." The old when in doubt theory: a) does my state law cover this situation, b) if not, is there an in-state lawsuit that set a precedent (standard) I should follow to CMA, c) are there suggestions by notary organizations (there are national and in-state ones) or my peers, and d) Most Importantly, what do I feel comfortable doing?

3. Witness requirements: Unless your state law gives you, the notary, the authority to reject witnesses, tread carefully. I often notarize documents with family member witnesses. Simple question to signer before arriving with witnesses in two: Are any of your witnesses named in the document or going to benefit financially at a future date because of this document?

I agree that "best practices" are suggestions by "outsiders" trying to help notaries public, not law. The former CT Secy of State includes best practices in her notary handbook, which is being used by the current Secy of State. Unless written in your state law, a notary public should be extradinarily careful in making the Sole Decision to dictate to a signer what is required by that particular notary before notarizing a document: require witnesses, who the notary will or will not allow to witness the signing, color ink used to sign the document.

Hugh, I like your "best alternative." My personal favorite of best practice, turned law and immediately reversed: CT had an extraordinarily short-lived, well intentioned, one statement, law passed: Notaries cannot notarize for relatives. LOL, no definition of who's a"relative," 16th 2nd cousin twice removed is a relative - do you know who that is? My hobby is geneaolgy - I'm distantly related to half the people in the state and then some. If we're all descended from Adam & Eve, CT notarization just came to a screeching halt. CT notaries CAN notarize for relatives, but need to know whether it is or is not appropriate for the document at hand.

Reply by jojo_MN on 2/13/12 10:06pm
Msg #411670

Check laws in state where person lives. Example from WI:


WISCONSIN LEGAL INFORMATION
Living Will (Advanced Medical Directive)-- Links and Statutes

Witnesses: Wisconsin law requires two individuals witness the signature of the maker;

Who may be a witness? Under Wisconsin law, "[n]o witness to the execution of the declaration may, at the time of the execution, be any of the following:
(a) Related to the declarant by blood, marriage or adoption.
(b) Have knowledge that he or she is entitled to or has a claim on any portion of the declarant's estate.
(c) Directly financially responsible for the declarant's health care.
(d) An individual who is a health care provider, as defined in s. 155.01 (7), who is serving the declarant at the time of execution, an employee, other than a chaplain or a social worker, of the health care provider or an employee, other than a chaplain or a social worker, of an inpatient health care facility in which the declarant is a patient."

Wisconsin Code Section 154.03(2).

Notary: There is no express provision in the Wisconsin statutes requiring that a living will be notarized; however, it is highly recommended that your living will be notarized to ensure that it is accepted by medical personnel in an emergency situation;

Must health care agent sign form? A health care agent must sign a medical power of attorney form which is separate from a living will under Wisconsin law;

Wisconsin Statutes containing living will requirements: Wisconsin Code Section 154.03, et al.

Link to free Wisconsin Living Will and Medical Power of Attorney forms from the Wisconsin Department of Health and Family Services.

Reply by jnew on 2/14/12 12:24pm
Msg #411718

Re: Check laws in state where person lives. Example from WI:

This section of the statutes is informative. A couple of questions: Does it authorize a notary public to determine the validity of the witnesses or is it a function of the signer and the witnesses themselves? If the notary is not integral to the document (notarization not required, only suggested), I would presume he/she has no authority to determine the validity of the witnesses. If the notary determines on their own authority, would they not be making a legal determination ( interpreting the statute) outside of their notarial authority. In short, this legal determination could possibly be considered UPL. Also another basic difference is that the OP was notarizing a POA in a state where witnesses and notary public are required. In Wisconsin, witnesses are not required for POA, only notarization; and only witnesses are required for a will and not notarization (although, as your example shows, a notarization is suggested for a living will).