Performing Notarial Acts

Presence Requirement When Notarizing

The basic role of a notary public in our legal system and in the world of commerce is to prevent fraud. Notaries deter fraud when they perform their duties with diligence and obey the laws governing their duties.

The most basic requirement for performing a notarization is that the person who is taking an oath or making an acknowledgment (the one whose signature is being notarized) must be present at the time of the notarization. The presence requirement refers to physical presence.

Florida Statutes section 117.107(9) provides that:

A notary public may not notarize a signature on a document if the person is not in the presence of the notary public at the time the signature is notarized. Any notary public who violates this paragraph is guilty of a civil infraction, punishable by penalty not exceeding $5,000, and that conduct constitutes malfeasance and misfeasance in the conduct of official duties. It is no defense to the civil infraction specified in this paragraph that the notary public acted without intent to defraud. A notary public who violates this paragraph with the intent to defraud is guilty of violating s. 117.105.

Violation of section 117.105 constitutes a third-degree felony for fraudulently taking an acknowledgment or making a false notary certificate. There is no exception to the presence requirement!

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Notarizing: Step by Step

  • Examine the Document: It is not necessary to read every word of the document, but you should scan the entire document to make sure it is complete BEFORE notarizing.
  • Check the Notarial Certificate: First, look at the venue: State of Florida, County of _____. This language should reflect the location where the document is being notarized. If it is incorrect, change the language and initial the change BEFORE notarizing. Second, check the date. If an incorrect date has been filled in, strike through that date, write in the correct date, and initial the change BEFORE notarizing. The correct date is the actual date of notarization. Third, look for the key words, “sworn” or “acknowledged”, to determine if you are to administer an oath or take an acknowledgment. If the document does not have a notarial certificate, the signer must tell you which notarial act the document requires. At the signer’s direction, you may write or type the appropriate certificate on the document.
  • Identify the Person: This is one of the most important steps. You must either personally know the signer or see one of the acceptable forms of identification specified in the notary law. See pages 32-33 for information on specific types of acceptable identification.
  • Assure that the Signer Understands the Document: You are not responsible for the contents of the document; however, you should be satisfied that the signer has read and understands the document, and that the signer is competent and willing to sign. If the signer has unanswered questions about the document or its effect, you should refer him or her to an attorney and not notarize. If the signer is blind or illiterate, read the document to him or her. If the signer does not understand English, make sure that the document is translated into a language that the person understands.
  • Administer the Oath or Take the Acknowledgment: When administering an oath, make sure that the person understands that he or she is swearing (or affirming) that the contents of the document are true. When taking an acknowledgment, make sure that the person is entering into the transaction of his or her own free will.
  • Complete the Jurat or Certificate: Make sure that the jurat or certificate contains all the information required by law. If the certificate is incomplete, write in the additional information. Sign your name, print or type your name below your signature, and affix your notary seal.

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Notarial Certificates

When performing notarizations, you are generally required to complete a notarial certificate of the act. The certificate is a record of what occurred at the time of the notarization, and you are responsible for ensuring that the certificate is complete and accurate.

The following pages contain sample notarial certificates for use on documents being notarized in Florida.

You will note that the notarial certificates for an oath (or affirmation) or an acknowledgment contain nine basic elements:

  • venue (the location of the notarization)
  • type of notarial act (oath/affirmation or acknowledgment)
  • that the signer personally appeared before the notary (“before me”)
  • actual date of notarization
  • name of person whose signature is being notarized
  • form of identification
  • signature of notary
  • name of notary printed/typed/stamped below signature
  • notary seal (with the 4 essential elements)

Some notarial certificates may vary in format, but any certificate should contain all these elements.

"Loose Certificates” Preprinted notarial certificates designed to be attached to a document should be used only in rare circumstances. Most documents will have a notarial certificate already printed on the document. Use that certificate, but make it comply with Florida law, if necessary. If the document has no notarial certificate, you should ask the document signer which notarial act is required for the execution of the document (an oath/affirmation or an acknowledgment). At the signer’s direction, you may type or print the appropriate certificate on the document below the designated signature line for the document signer. Only in rare circumstances should you actually attach a “loose certificate.” If you do, be sure to state in the notarial certificate the exact document and signature to which the notarization applies.

Documents Prepared or Notarized in Other States When notarizing a signature on a document that was prepared in another state, make sure that you add the required information to make your notarial certificate comply with Florida law. This means that you may have to change the venue (State of Florida, County of _____________), add the type of identification, etc.

Documents notarized in another state must be notarized according to the laws of that state by an officer authorized to act in that state, and will be accepted in Florida, if properly notarized. To determine if a notarization complies with that state’s laws, you may contact the state’s agency that appoints notaries (generally the Governor or Secretary of State).

Corrections When necessary to correct information already printed in the notarial certificate, i.e., the date, the name of the person whose signature is being notarized, do not use correction fluid. Simply mark through the incorrect information and make the change before you complete the notarization. You should probably initial that change, also.

Once you “complete” the notarization and return it to the document signer, you may not amend your certificate. For instance, if you forgot to state the type of identification or affix your seal and the document is returned to you on a later date by the receiving party, you may not correct your error. The document will require re-notarization, including the presence of the document signer.

These notarial certificates are reprints of the forms provided in the Florida Statutes, sections 117.05(13). These forms do not preclude the use of other forms; however, any form that is used must contain all the required information.

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Statutory Short Forms of Acknowledgment

The notarial certificates on this page are found in the real estate chapter of the Florida Statutes but may be used for any notarization requiring an acknowledgement (See section 695.25, Florida Statutes). Although these certificates appear in a slightly different format, each one contains the same elements required in the notary law, Chapter 117. When using one of these certificates, be sure that you circle or underline the appropriate method of identification.

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Acceptable Identification When Notarizing

From Subsection 117.05(5) of the Florida Statutes

A notary public may not notarize a signature on a document unless he or she personally knows, or has satisfactory evidence, that the person whose signature is to be notarized is the individual who is described in and who is executing the instrument. A notary public shall certify in the certificate of acknowledgment or jurat the type of identification, either based on personal knowledge or other form of identification, upon which the notary public is relying.

Personally Known: "Personally known” means having an acquaintance, derived from association with the individual, which establishes the individual’s identity with at least a reasonable certainty.

Satisfactory Evidence: “Satisfactory evidence” means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the person making the acknowledgment is not the person he or she claims to be, and any one of the following:

  • Sworn Written Statement of a Credible Witness: The sworn written statement of a credible witness personally known to the notary public that the person whose signature is to be notarized is personally known to the witness.

  • Sworn Written Statement of Two Credible Witnesses: The sworn written statement of two credible witnesses whose identities are proven to the notary public upon the presentation of satisfactory evidence that each of the following is true:

    a. The person whose signature is to be notarized is the person named in the document;

    b. The person whose signature is to be notarized is personally known to the witnesses;

    c. That it is the reasonable belief of the witnesses that the circumstances of the person whose signature is to be notarized are such that it would be very difficult or impossible for that person to obtain another form of identification;

    d. The person whose signature is to be notarized does not possess any of the identification documents specified in subparagraph 3.; and

    e. The witnesses do not have a financial interest in nor are parties to the underlying transaction. For more information about using these methods of identification, please review “More About Identification” on page 33.

  • One of the following forms of identification: a. Driver’s license or identification card issued by the Florida Department of Highway Safety and Motor Vehicles.

    b. Passport issued by the U. S. Department of State.

    c. Passport issued by a foreign government, if stamped by the U.S. Department of Justice, Immigration and Naturalization Service.

    d. Driver’s license issued by a territory of the United States, another state, Canada or Mexico.

    e. Identification card issued by a territory of the United States or a state other than Florida.

    f. Identification card issued by any branch of the U.S. armed forces.

    g. An inmate identification card issued on or after 1/1/91 by Florida Department of Corrections for an inmate who is currently in custody of the Department.

    h. A sworn, written statement from a sworn law enforcement officer that the forms of identification for an inmate in an institution of confinement were confiscated upon confinement, and that the person named in the document is the person whose signature is to notarized.

    i. An identification card issued by the U.S. Department of Justice, Immigration and Naturalization Service.

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More About Identification

Occasionally, a notary is asked to notarize the signature of a person who does not have, and cannot obtain, acceptable identification. This most often occurs when the person is an elderly person, a minor child, or a person with a disability. Florida law provides two additional methods of identification for these situations:

  • the sworn written statement of a credible witness who is personally known to the notary and who personally knows the signer, and
  • the sworn written statement of two credible witnesses whose identities are proven to the notary and who personally know the signer.

Please note that with either method the witnesses must personally know the person whose signature is being notarized and must make a sworn written statement. With the first method, the witness must be personally known to the notary. With the second method, the witnesses must have acceptable identification.

When using these methods of identification, it is a good practice to have the witnesses also sign the document being notarized. Although not required, if the document has sufficient space, you may want to print or type the witnesses’ statement on the notarized document itself. If it is on a separate paper, then you should keep it in your records, rather than attach it to the notarized document. Additionally, your notarial certificate should state that the form of identification you relied upon was the sworn written statement of a (two) credible witness(es): name(s).

Keep in mind that these provisions are for the purpose of identifying certain people who do not have other identification and do not replace the “presence” requirement. The person whose signature is being notarized must be present at the time of the notarization.

These forms may be used in these unusual circumstances and are merely suggestions. Any affidavit containing the statutorily required information would be sufficient.

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Resource for Verifying Identification

If you have ever wondered whether a driver’s license from another state is legitimate, you may wish to purchase a booklet used to verify the most common forms of identification. The I.D. Checking Guide is published by the Drivers License Guide Company annually in February (ISBN 0-938964-33-X).

This full-color booklet has pictures and descriptions of driver’s licenses and identification cards (current and previous valid issues) issued by all 50 states, the provinces of Canada, the federal government (such as resident alien cards and others issued by INS and military identification cards), bank cards, and automobile registration plates. The cost is nominal and may protect you and your employer from reliance upon a fraudulent identification card.

The booklet may be ordered from any of the following sources:

Drivers License Guide Company
1492 Oddstad Drive
P. O. Box 5305, Dept. 96
Redwood City, CA 94063
(415) 369-4849

American Society of Notaries
Post Office Box 5707
Tallahassee, FL 32314-5707
(800) 522-3392

National Notary Association
9350 DeSoto Avenue
Post Office Box 2402
Chatsworth, CA 91313-2402
(800) 876-6827

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Identification: “Green Cards” Updated

Resident alien cards, commonly called “green cards,” have recently been updated by the U.S. Department of Justice, Immigration and Naturalization Service. Former cards identified as Form I-151 issued prior to 1978 have been replaced with cards designed to be more resistant to fraud and counterfeiting.

The new cards are designated as Form I-551 and are made of hard plastic, similar to credit cards, rather than laminated paper cards. Each card has a pink background, the words “Resident Alien” in dark blue, and a blue INS seal in the center of the card. The card also contains a photo (showing the right ear), signature and fingerprint of the resident alien. Other valid cards issued after 1978 have white backgrounds, but all valid cards will have the photo, signature and fingerprint of the bearer.

Notaries may accept the new cards as identification if the card is current (unexpired) or was issued within the past five years. The old card Form I-151 is no longer valid and should not be accepted for notary services.

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Identification: DOC Inmate Identification Cards

Included in the list of acceptable forms of identification in section 117.05(5), Florida Statutes, is the Florida Department of Corrections inmate identification card for an inmate who is in the custody of the department. When a person is taken into custody and housed in a state prison, all forms of identification are confiscated and the inmate is issued a department identification card.

Generally, when inmates require notarial services, those services are provided by a notary employed by the Department of Corrections. Occasionally, though, a notary outside the department may be asked to go to the facility for the purpose of notarizing for an inmate. In this instance, the notary may rely upon the DOC identification card as proof of identity.

The card is made of hard plastic, similar to a credit card, and contains the inmate’s name, inmate identification number, date of birth, photo, and physical description. However, the card does not contain the inmate’s signature. Upon release from custody, a sticker is placed on the card indicating that the inmate has been released and the date of the release. The inmate may use this card temporarily until he or she can obtain a proper identification card or driver’s license from the Department of Highway Safety and Motor Vehicles.

Florida law provides that this card may be used only “for an inmate who is in the custody of the department.” Therefore, a notary may not accept this card as identification after the person is discharged from prison.

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