Posted by BBuchler/CA on 3/5/13 10:21am
Msg #459270

CA - Communicating with the client - per the SOS - LONG

There was an earlier thread about hearing impaired clients and interpreters. I haven't had this issue, but wondered how the SOS wanted us to deal with it. So I sent two emails, one asking the question and then one clarifying the answer. The 2nd answer from the SOS was very interesting and begs the question - what exactly is their role. See below:

QUESTION: "Customer's Message: Can we notarize documents for someone who is hearing impaired, if there is an "interpreter" present? Does the notary have to be "fluent" in sign language? Clarification is needed. Thank you."

ANSWER #1: "When notarizing a signature on a document, a notary public must be able to communicate with the customer in order for the signer either to swear to or affirm the contents of the affidavit or to acknowledge the execution of the document. An interpreter should not be used, as vital information could be lost in the translation. If a notary public is unable to communicate with a customer, the customer should be referred to a notary public who speaks the customer’s language."

Okay, no issue with this, was the answer I expected.

QUESTION #2: Thank you, but futher clarification is necessary.

When the notary gives the oath, the “verbal” answer would be yes or no. However, without the ability to speak, could the customer give the universally known nod in the affirmative or shake of the head in the negative?. In other words, does the customer’s answer need to ALWAYS be a verbal answer?

If the customer were to have two pieces of paper, one with NO on it and one with YES on it, and in response to a question asked by the notary, held up one of these two pieces of paper as the answer, would that be acceptable? Can the notary supply the two pieces of paper, or would the customer have to actually supply the Yes/No pieces of paper?

ANSWER #2: The notary laws do not define how the notary public and the signer are to communicate only that both parties understand the notarial transaction taking place and that an interpreter is not used.

It is the Secretary of State's responsibility to appoint and commission notaries public and to enforce the provisions of the California Government Code as it relates to notaries public. Our office is unable to interpret the laws the way they are written.

Your question regarding the communication between a notary public and a document signer may be more appropriately directed to a private attorney. A private attorney would directly represent your interests and provide advice most helpful to you.

Well, "Our office is unable to interpret the laws the way they are written"? If they can't, how can we?

I know I've watched too many TV legal shows, as my thinking is that if, in the course of this issue, the "parties stipulate to using two pieces of paper, marked yes and no, that the client will answer the questions put to them by the notary public" then I'm good to go. Certainly you can "test" this by asking some inane questions prior to be sure that the answer you expect is the one you're given.

Interesting conundrum.

Reply by Notarysigner on 3/5/13 10:37am
Msg #459271

Very good, thanks for the effort and sharing it!

Reply by GOLDGIRL/CA on 3/5/13 1:41pm
Msg #459309

Huh?

Regardless of the subject of this latest e-mail exchange between the SOS and a notary, this is the standout quote:

"It is the Secretary of State's responsibility to appoint and commission notaries public and to enforce the provisions of the California Government Code as it relates to notaries public. Our office is unable to interpret the laws the way they are written."

Well, whose job is it, then? Whenever Congress writes legislation which passes into law, a governmental agency will prepare regulations on how the law will be implemented. Hundreds of thousands of bureaucrats are employed to interpret the intent of these laws and then to spread the word to those affected as to how the law is to be implemented. But somehow the intent of the CA legislature is exempt from interpretation by the SOS? So, who does interpret it? That's the person I want to meet.

And then the SOS always does the ultimate copout:

"A private attorney would directly represent your interests and provide advice most helpful to you. "

So, if a notary public wants interpretation of "laws the way they are written," we hire an attorney to "represent our interests"? We have no interests beyond our role as a public official, and like any other public official our interests should be covered under the umbrella of the agency we represent. We don't represent ourselves. Otherwise we could just commission ourselves.

Instead of stupid test questions like "What is the size of the CA seal?" they should be asking about notarizing for the hearing impaired. But no, that would require an interpretation of the law. Yikes!

I'm also tired of these excited reactions on NR everytime the SOS office issues a response to a notary's query, like it's somehow tantamount to God responding to Moses and that we should wallow in gratutude that the original notary was so special in getting an actual reply. Wowie zowie. Why is it so difficult for them to address the issues we face everyday?

But, no, we need to hire an attorney. I'm also wary of SOS responses to questions submitted by individual notaries who then diseminate the response like it's gospel. If the SOS meant their response to cover all notaries, they would have/should have put it in the handbook or newsletter. Instead, they respond to just one notary and leave the other 99.9999% out of the loop? And occasionally, we see conflicting responses posted here.

Perhaps I'm the one out of the loop cos none of this makes any sense to me...

Reply by Notarysigner on 3/5/13 2:20pm
Msg #459318

Re: Huh?

Well my sister, If we ask the same question four thousand times, maybe the answer will appear in the handbook under the title,..."20 most frequently answered questions",...then it'll have more bite! hehe

Reply by GOLDGIRL/CA on 3/5/13 2:35pm
Msg #459324

Re: Huh?

Good one, James! Well, since the SOS "is unable" to interpret the law, how about we do it? I guess we're as good as anybody. Then we'll put out our own handbook of CA law interpretation and sell it! Oh, we better hire an attorney to represent "our interests." Then, we'll be The Word.

Reply by Marian_in_CA on 3/5/13 10:38am
Msg #459272

Well, here's my issue with your question #2. You said, "When the notary gives the oath, the “verbal” answer would be yes or no."

Since when? There is no provision in notary law that states communication must be verbal or otherwise... just that we have direct communication. Verbal communication is only one form. Written is another... like right here. In fact, they say that the majority of communication is NON-verbal. And, that is often very helpful to us as notaries. What if somebody is being coerced in to signing something? Their verbal communication might say one thing, but it may be in conflict with their physical communication, and it's a clue we might pick up on.

The Secretary of State is right. They cannot *interpret* the law at all. However, when you ask them questions... it's all in how you communicate (heh) it to them. They can answer PROCEDURAL questions and will tell you how they expect notaries to act or behave. When you ask them questions, that's how you need to approach it. If you approach them with baseless interpretations that aren't addressed in the handbook and then start asking them questions, that's when they will step back and tell you, "It's not our job to do this.." That, IMO, should be a clue to YOU that the question you're asking them is off-base.

So, with question #2, you start it out with this (IMO) crazy assumption that oath answers must be verbal. Based on that, of course they are going to tell you what they did.

Reply by Notarysigner on 3/5/13 11:10am
Msg #459283

Re: CA - Communicating with the client - well then how about

communication in the affirmative or negative as long as it is understood by the notary and the signing party?

Hmmmm maybe we should have a Yes or No button on our cell phones. We already have translation apps.

Reply by Marian_in_CA on 3/5/13 11:44am
Msg #459288

Re: CA - Communicating with the client - well then how about

Well yeah... think about it. What if both the signer and the Notary are deaf and both are fluent in ASL. If there were some requirement that oaths/affirmations be verbal, then...seems to me that is rather discriminatory to people who cannot speak or hear but can't communicate just fine by other methods.

Reply by Notarysigner on 3/5/13 12:21pm
Msg #459296

Re: CA - Communicating with the client - well then how about

.....And so, texting should be okay (as opposed to notes).....and not Limited to verbal/oral communication.

Glad for the post and discussion.

Reply by BBuchler/CA on 3/5/13 2:02pm
Msg #459311

Re: CA - Communicating with the client

"Well, here's my issue with your question #2. You said, "When the notary gives the oath, the “verbal” answer would be yes or no." Since when? There is no provision in notary law that states communication must be verbal or otherwise... just that we have direct communication."

Marian, this actually is more of my point with regarding to "interpreting" the rules. I understand that there are many ways to "communicate" with clients, verbal and non-verbal. Been doing that for more years than I can count.

The "crazy" assumption was just that, an assumption, made for the purpose of the question. A "scenario" if you will. I certainly could have laid out 10 different scenario's, but chose just this one to see what the resulting answer would be. I have no intention of bombarding the SOS with scenarios, I am perfectly capable of using my own common sense, as I'm sure many many others on here are as well.

I don't think my question was off-base, I think, in fact, that it may help clarify for others situations that may require the NP to think outside the box. This forum is all about trying to deal with situations that occur and getting a consensus to help answer the question.

Sorry if it pushed a hot button for you, wasn't my intent, but rather to open a discussion.

Reply by Yoli/CA on 3/5/13 10:38am
Msg #459273

Okay, Barbara, it appears that what had previously been discussed that the notary and the ASL signer could "pass notes" is perfectly acceptable as they are directly communicating.

The issue in the other instance (and I was the OP) was that the SS was insisting an interpreter be used and had done so in the past with no issues. This is not acceptable per CA Handbook.

Thanks for requesting clarification from SOS!

Reply by Belinda/CA on 3/5/13 10:56am
Msg #459280

Recently received a call for GN from a hearing impair lady.

I asked if she could directly communicate with me and she said she would bring an interpeter. (We were speaking on some kind of phone system.) When I quoted the handbook to her and asked if initially we could talk directly, i.e. read lips, write notes. I explained I have no idea what the interpreter was communicating to her even though she was a trusted companion. It worked out just fine.

Once I had a couple and the husband did not speak English. Wife kept interpreting for us. I finally got her to realize that was not going to work. Then she spoke to him again in their language and told me to now ask him the same question again. To appease her I asked him again. I asked him what he thought the Quitclaim Deeds to five of their properties were for. He slowly said, "lease agreements." Acually he was deeding all their properties over to his wife as her sole and separate. She set there nodding her head up and down grinning at me like she just won the lottery.

Moral of the story. Interpreter's cannot be trusted.

Reply by VT_Syrup on 3/5/13 1:29pm
Msg #459308

"Verbal" is often missused or unclear

Several definitions are available for any word, but I like to define "verbal" as expressed in words. So writing, speaking, and ASL are all verbal. Drawings, acting something out, and pointing are all non-verbal. "Oral" can be either; most speech is verbal; the main exception is making funny noises while trying to explain to the auto mechanic what is wrong with your car.