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Notary public

From Academic Kids

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An Embossed Notary Seal

A notary public is an officer who can administer and give oaths, and perform certain other acts varying from jurisdiction to jurisdiction.

Contents

History

The office of notary dates back to the Roman Empire. Prior to the enactment of the Ecclesiastical Licences Act 1533, the appointment of notaries in England lay with the Pope. The Pope delegated his powers of appointment to his legate, the Archbishop of Canterbury. It was through a licence or faculty granted by the Archbishop in the exercise of his legatine powers that a notary received the right to practise. After the passage of the 1533 Act, which was a direct result of the Reformation in England, all notary appointments were issued directly through the Court of Faculties. The Court of Faculties is attached to the office of the Archbishop of Canterbury.

Common law jurisdictions

A notary in some common law jurisdictions is a qualified lawyer. Traditionally, notaries recorded matters of judicial importance as well as private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required. Specifically, the functions of notaries include the attestation of documents and certification of their due execution, administering of oaths, witnessing affidavits and statutory declarations, certification of copy documents, noting and protesting of bills of exchange and the preparation of ships' protests.

Significant weight attaches to documents certified by notaries. Documents certified by notaries are sealed with the notary's seal and are recorded by the notary in a register maintained by him/her. These are known as "notarial acts". Notarial acts and certificates are recognised in countries of the British Commonwealth and some other countries without the need for any further certification from the respective Foreign Ministry or foreign diplomatic missions. (In countries subscribing to the Hague Convention Abolishing the Requirement for Legalisation for Foreign Public Documents only one further act of certification is required, known as an apostille).

Notaries in England

In England there are three classes of notaries. Scrivener notaries, who get their name from the Scriveners' Company, are the only notaries permitted to practise in the City of London. Due to their geographical proximity to many civil law countries, scrivener notaries are only appointed after five years articles to a practising notary. Scrivener notaries must be fluent in one or two foreign languages and be familiar with the principles and practice of foreign law.

The other two classes of notaries in England are qualified solicitors who only practise outside the City and non-legally qualified persons who satisfy the Master of Faculties of the Archbishop of Canterbury that they possess an adequate understanding of the law. Both the latter two categories are required to pass examinations set by the Master of Faculties.

United States

In the United States, generally speaking, a notary public is a public official appointed by a state government to serve the public as an impartial witness. Usually individuals need no special training to obtain a notary public license; they must only pass a simple test, and have some form of background check or obtain a bond or insurance to ensure their integrity. Most banks have at least one notary present whenever they are open. In the United States, a non-attorney notary may not offer legal advice or prepare documents, and cannot recommend how a person should sign a document or even what type of notarization is necessary.

Each state in the United States has different requirements for becoming a notary public. Some states require that notaries be appointed directly by the state legislature, while in others the individual simply takes an exam and pays a small annual fee. In most states, notaries are administered by the Secretary of State; in Alaska, this function is performed by the office of the Lieutenant Governor.

Historically, some states required that a notary be a citizen of the United States. However, the United States Supreme Court, in the case of Bernal v. Fainter Template:Ussc, declared that to be impermissible.

In the U.S., there are reports of notaries (or people claiming to be notaries) who take advantage of the differing roles of notaries in common law and civil law jurisdictions to engage in the unauthorized practice of law. The victims of such scams are typically illegal immigrants from civil law countries who need assistance with their immigration papers and do not understand that they need to hire an attorney. Confusion often results from the mistaken premise that a notary public in the United States serves the same function as a Notario Publico in spanish speaking countries. Prosecutions in such cases are difficult, as the victims are often deported and thus unavailable to testify.

California

Each state authorizes a notary to perform a limited range of activities called notarizations. In some states a notary is authorized to solemnize marriages. California notary law will be discussed here. See California Government Code Sections 8201 et seq.

Notarization does not prove the truthfulness of statements in a document, nor does it legalize or validate a document. Notarization also does not protect one's rights in artistic creations or inventions.

Notarization requires that the notary screen the signer. This involves reviewing identity cards (driver's license, etc.) or testimony from one or more credible identifying witnesses. If you need a document notarized, it is your responsibility to bring the necessary identification or witnesses. Next, the notary must complete a journal entry and finally the notary will complete the notarial act. In California, a thumbprint is required in the journal entry for certain types of transactions to prevent fraud. Documents with blank spaces cannot be notarized. Presumably this is also to prevent fraud, for the same reason one often draws a horizontal line across the space at the end of the amount on a check.

The two primary types of notarizations are acknowledgements and jurats.

Acknowledgments are executed on deeds, documents affecting property, and the like. An acknowledgment is a signed statement by the notary that the signer (1) personally appeared before the notary, (2) was positively identified by the notary, and (3) acknowledged having signed the document.

A jurat (or oath) is designed to compel truthfulness in a signer, for instance through fear of the law or God. A jurat is a signed statement by the notary stating that the signer (1) personally appeared before the notary, (2) signed the document in the presence of the notary, and (3) took an oath or affirmation administered by the notary, e.g. "Do you swear that the statements in this document are true, so help you God?" or "Do you affirm that the statements in this document are true?". Note that California law does not require identification of the signer for jurats, but few notaries will allow you to complete the notarization without identifying yourself.

Virginia

Notaries are appointed by the Governor. An individual may become a notary public on (1) filling out an application; (2) having the application itself notarized; (3) having two persons who are registered voters to sign the application, attesting to the applicant's character; (4) Having the application signed by the Clerk of a Circuit Court, member of the state legislature, or certain other public officials; and (5) sending the application with a fee (as of 2003 the fee was $35) to the Secretary of the Commonwealth in Richmond. The application is almost always approved. The Secretary of the Commonwealth will send the applicant's commission to the Clerk of the Circuit Court where the applicant asked it be issued. That clerk will swear the applicant, collect a fee of $10 (as of 2003), and give the applicant their commission. At that point the applicant is now commissioned as a Notary Public in and for the Commonwealth of Virginia. While the applicant must swear that they have read the notary laws, there is no test or special knowledge required.

Virginia does not require seals, but most people having documents authenticated expect them, so most notaries do carry and use them. No bond is required, and a notary is not required to keep a log of official acts.

A Virginia notary is not permitted to perform marriages, that requires a separate permission, either by being an official (such as a priest or a minister) of a church or other religious organization, or by paying a fee.

A notary applicant cannot have any (unpardoned) felony criminal convictions, and a felony conviction will void a notary's commission.

A Virginia notary is authorized to acknowledge signatures, take oaths, and certify copies of non-government documents. A notary may only authenticate a person based upon that person's documentation of their identity (such as a driver's license or identification card), or by the notary's own personal knowledge of the person appearing before them, use of witnesses to identify an individual is not permitted.

Acting as a notary without a valid commission constitutes a class 6 felony, punishable by up to 5 years in prison, in Virginia.

Civil Law jurisdictions

The role undertaken by notaries in civil law countries is much greater than in common law countries. Notaries in the former countries frequently undertake work done in common law countries by the Titles Office and other Government agencies. The qualifications imposed by some countries is much greater. In Greece, for example, a practitioner must choose to be either a solicitor or a notary.

This should be contrasted with the Latin American notario who may be similar to an attorney at law or lawyer. A French notaire and a German Notar register wills and other documents, and authenticates transactions of real estate.

In the few United States jurisdictions where trained notaries are allowed (such as Puerto Rico), the practice of these jurists is limited to non-judicial legal advice, property conveyencing and legal drafting. See civil law notary.

External link

fr:Notaire public hu:Közjegyző nl:notaris

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