Course Overview What is a Notary? Colorado Notary Public Course - - PowerPoint PPT Presentation

Colorado Notary Public Course

Aardvark Notary Training aardvarknotarytraining.com info@aardvarknotarytraining.com 1

Course Overview

• What is a Notary?
• How to Become a Notary
• The Notary’s Toolbox
• Notary Public Powers
• Misconduct and Liability
• Administrative Requirements

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Sources For This Presentation

Colorado Notary Public Law Colorado Notary Handbook Model Notary Act Colorado Secretary of State Website RULONA - Revised Uniform Law on Notarial Acts Best Practices

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What is a Notary?

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What is a Notary Public?

A Quasi-Public Official. Through the application process, the Notary Public is appointed by the

Secretary of State.

Has been granted specific powers by law. Serves the people of Colorado, but only in Colorado. An unbiased verifier and authenticator A disinterested observer of transactions. An impartial third party.

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Why Do We Need Notaries?

To help to prevent fraud; not all people are honest. 32% of perpetrators of fraud were family members or relatives. 18% were friends, neighbors, or in-home employees. A common target for fraud is the elderly. The Colorado Secretary of State and Attorney General have made fraud a

high priority.

Especially wills, powers of attorney, real property instruments (quit claim

deeds).

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How do Notaries Prevent Fraud?

Signatures authenticate important items (Land transfers, parenting plans, etc.) Notaries verify and authenticate signatures and documents. Ensures that certain minimum standards are met when a document is signed. Ensures that the signer is a willing participant. Ensures that the identity of the person that signs a document has been verified. Notaries are persons of integrity. Not convicted of felonies or recent misdemeanors involving dishonesty.

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Ethical Responsibilities

As public servants, notaries are encouraged to provide a notarization for anyone who makes

a lawful and reasonable request.

The Notaries Public Act does not prohibit notaries from refusing to notarize. Notaries who hold themselves out to the public may also be subject to other laws prohibiting

discrimination.

Check with your employer or legal counsel if you have questions about your obligations to

the public.

Complaints alleging discrimination by notaries are referred to the Civil Rights Commission. Best Practice: If you refuse a request to notarize, record the event in your journal, including

the reason why.

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How to Become a Colorado Notary Public

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Application Requirements

At least 18 Years Old Read and Write the English Language Residence and Business Address in Colorado Never Had a Notary Commission Revoked No felony convictions; no misdemeanors involving dishonesty in previous 5 years Colorado Resident

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Lawful Presence

The government cannot grant benefits or issue business or

professional licenses to those in the United States illegally.

Acceptable photo identification proving lawful presence is required. A clear photocopy must be submitted with your notary application. Your application will also include your business and home

addresses in Colorado.

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Lawful Presence Acceptable Identification

Colorado Drivers License or ID U.S. Military

• r Dependent

ID Card U.S. Merchant Mariner Card Native American Tribal ID U.S. Passport

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Lawful Presence Affirmation

Oath under penalty of perjury that the applicant is: A citizen of the United States, or A permanent resident of the United States, or Lawfully present under federal law. If not a U.S. citizen, a copy of the Permanent Resident card or other

documentation must be provided along with the application.

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Steps to Apply

Have Signature Notarized and Submit Online Complete and Print Online Application Pass State Exam Attend Authorized Training Course

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Application Facts

The Secretary of State receives over 1,500 applications every month. These include both new applicants and applications for reappointment. A Notary Public commission lasts for four years. Commissions can be renewed. The commission should be renewed within 90 days before it expires. About 20% of these applications are rejected. As part of your application, you will swear under penalty of perjury that you have

read the notary law of Colorado.

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Common Rejection Reasons

Incomplete or inaccurate application form Carefully enter your information online Affirmation form is not notarized properly Applicant does not meet the requirements (i.e. convicted of a felony)

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Online Applications Only

Online applications are less expensive and processed faster New applicants are registered for online access upon payment of the

application fee

Renewing and expired applicants must first register for online access

before renewing the notary commission

You should use a personal email address Work emails over-filter spam If you change jobs you’ll still have access

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Items to Submit Online

Original, signed, notarized application form Clear photocopy of an acceptable form of ID (front and back) Training certificate (for new notaries and renewals expired for more than 30 days) State exam certificate (for new notaries and renewals expired for more than 30 days)

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Affirmation Form

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Signature

The signature that you use on your affirmation form will become your

• fficial notary signature.

You must sign this way consistently in all notarizations. Your notarizations may be compared with your official signature will

if any issues come up.

The name on your ID must match the name on your application,

even if you sign using your initials.

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The Notary’s Toolbox

Required Items

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Required Items

Notarial certificate Notary seal Notary journal Physical presence Satisfactory evidence No disqualifying interest

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Notarial Certificate

You must always use a complete notarial certificate Includes: Accurate who, what, when, where (i.e., no pre- or post-dating) Notary seal Notary’s official signature Commission expiration date Best practice is to include the title of the document you are notarizing Examples will be provided later

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Notary Seal

A rectangular rubber ink stamp Must contain within the border Notary’s official name The words “Notary Public” The words “State of Colorado” The Notary’s 11-digit ID number The Notary’s commission expiration

date

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Notary Seal Concerns

Name misspelled or does not match official name on record with the Secretary of

State

Omits one of required items or has expiration date outside the border Commission expiration date or ID number incorrect Seal stamped over signatures Seal is smeared or obscured Lost seals must be reported to the Secretary of State. The notary owns the seal

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Incorrect Seals

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More Incorrect Seals

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Is This Seal Okay?

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Notary Journal

A notary journal is required for all notarizations Exception: If the notary’s firm or employer, in the regular course of business, keeps

the documents or copies of them, the notary is not required to make a journal entry.

Protects against unfounded complaints Provides evidence in the event of a lawsuit The Secretary of State may ask for the journal to verify transactions. If the journal is not

produced, the notary may be found personally liable.

The Notary owns the journal. Lost journals must be reported to the Secretary of State.

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The Exception Puts You At Risk!

The notary becomes liable for documents that are misfiled, lost,

destroyed or otherwise unrecoverable

Should the notary leave their place of business, they remain

responsible for obtaining or retaining all documents for which they have performed a notarial act.

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Notary Journal Required Elements

It must contain for each notarial act Type of notarial act Date of notarial act Title or type of document being notarized Name, address, and signature of person signing Name, address, and signature of each witness

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Notary Journal Optional Best Practices

Include in the Journal: Type of Identification (not number) Thumbprint of signer Customer should sign Journal first.

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Journal Requests for Copies

You are permitted by law to provide certified copies of a journal entry or certificate. You may charge a regular notary fee. You may be required to do so by the Secretary of State in response to a complaint or inquiry. The Model Notary Act suggests: The requesting party should be specific about the transaction. General requests to view or copy the

journal should not be permitted.

The identity of the requester should be confirmed and the transaction should be recorded in your journal. The requester should only have access to the single transaction. Entries on the same page should be

covered or redacted.

As a best practice you should also redact any information not required by law (e.g., thumbprints, etc.)

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Physical Presence

For all notarial acts, the client must appear physically (face-to-face)

before the notary.

That means, standing or sitting in front of you. You can’t notarize things if the client is in another location. You can’t notarize things that your employer said he saw a client

sign.

You can’t notarize things talking on the phone

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Satisfactory Evidence

Personal Knowledge Credible Witness Identification

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Personal Knowledge

If you personally know the signer and his or her signature and are

confident that the person is who he or she says then you can perform the notarization.

An example is performing notarizations for your supervisor.

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Credible Witness

This is the least preferred method. A third person “vouches” for the identity of the person who you do not personally know

• r does not have identification.

The third person must be personally known to both the notary and the signer. Examples of when this might be necessary is an elderly person who has expired

identification or a recent immigrant.

In the case of contested notarizations the Secretary of State must decide the extent of

the personal relationships.

Since personal relationships are not defined by law, the Secretary of State has wide

discretion.

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Identification

Secure and Verifiable Identification (SVID) This is the standard developed and used by the State of Colorado. A current identification card or document issued by a federal or

state governmental entity

A picture and a signature is required. The identification may not be expired.

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Common Forms of Identification

Current Colorado Driver’s License or Colorado Identification Current United States Passport Valid United States Military Identification Driver’s License from another state. These should be verified using a resource like the I.D. Checking

Guide

http://www.driverslicenseguide.com/

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Uncommon Forms of Identification

All Contain U.S. symbols and Picture and Signature. Consult the US Department of State Website The Complete List: Valid foreign passport with I-94 or valid processed for I-551 stamps. Exception: Canadian

Passport may not have I-94 attached.

Valid I-94 issued by U.S. Immigration with L1 or R1 status and a valid Canadian drivers

license or valid Canadian identification card.

Valid I-551 Resident Alien/Permanent Resident card. Valid I-688 Temporary Resident, I-688B, and I-766 Employment Authorization Card with intact

photo.

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Unacceptable Identification

Matricula Consular (not United States federal or state) Provided to staff at the Mexican embassy Birth Certificate (no picture or signature) Latest version of Military Identification (no signature) Border crossing cards (from Mexico) Must be residents of Mexico with ties to Mexico warranting a temporary stay in the

United States.

Rent or utility receipts (no picture, signature, not issued by United States federal or state

government)

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Identification Best Practices

Check the back for authenticity Check the physical description on the identification and compare it to the

client.

Check the date of birth and compare it to the client. Check for evidence of alteration or tampering. If in doubt (or as a good practice), ask for two forms of identification and

compare them.

Record the form of identification in the notary journal to protect from liability.

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No Disqualifying Interest

You cannot notarize documents for which you have a “disqualifying interest.” You are named as a party in the transaction You could gain from the transaction Example #1: you cannot notarize a Last Will and Testament in which you are named a beneficiary. Example #2: you cannot notarize a quitclaim deed to real property if you are named as the grantee. The Model Notary Act says not to notarize for Close family members In-laws, half, step, or domestic partners Revised Uniform Law on Notarial Acts (RULONA) Cannot notarize if spouse/civil partner is a party or has a beneficial interest

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Notary Public Powers

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Most Used Powers

Oaths and Affirmations Acknowledgements Copy Certifications

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Oaths and Affirmations

Jurats: statements that are sworn to or affirmed. “So help me God” “Under penalty of perjury” The notary administers an oath (Examples are in the Notary Handbook). The client must verbally swear to or affirm his or her identity and that he or she

identifies the document.

This is done before the jurat is completed. The notary does not verify the contents of the document.

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Oaths and Affirmation Process

Step 1 • Record the transaction in your notary journal Step 2 • Identify the client using “Satisfactory Evidence” Step 3 • Administer the Oath or Affirmation Step 4 • Watch the client sign in your physical presence Step 5 • Complete the Notarial Certificate

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Model Notary Act (Oaths and Affirmations)

Read aloud any provided affirmation wording and have the client

assent

Proper affirmation requires a positive and unequivocal response by

the signer

The response is preferred to be verbal but can be non-verbal (e.g.

nodding head)

The Notary Handbook provides suggested wording for

administering the oath

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Jurat for Oath or Affirmation

State of Colorado

ss

City and County of Denver Subscribed and sworn to (or affirmed) before me this 1st day of June, 2011 by John Q. Adams.

Michael L. Smith

Michael L. Smith Notary Public My Commission expires:___________ Stamp of Seal

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Acknowledgements

Unlike jurats, these are unsworn statements. Commonly used for Real Property transactions No need to witness the signature Client must acknowledge that he or she signed the document in the

physical presence of the notary, but does not have to sign in front of the notary

The notary does not verify the contents of the document.

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Acknowledgements Process

Step 1 • Record the transaction in your notary journal Step 2 • Identify the client using “Satisfactory Evidence” Step 3

• Client acknowledges in your physical presence that

he or she signed the document Step 4 • Complete the notarial certificate

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Model Notary Act (Acknowledgements)

The client does not make any statement regarding the accuracy or

truthfulness of the document’s contents

The acknowledgement acknowledges that the document was

voluntarily signed in order to validate the document.

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Notarial Certificate (Acknowledgement)

State of Colorado

ss

County of Larimer The foregoing instrument was acknowledged before me this 1st day of January, 2011 by Robert Jones.

John B. Anderson

John B. Anderson Notary Public My Commission expires:___________

Stamp of Seal

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Signature Banks

A document meant to be signed by more than one person. Make sure that you clearly state the name of the signature that you

are notarizing in the notarial certificate.

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Oath/Affirmation or Acknowledgement?

As a notary, you do not decide; you perform the notarial act that the

client requests.

If the client does not know, direct the client to the person that is

requesting the document.

As a disinterested witness, this cannot be your responsibility and

can lead to liability.

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Copy Certifications

Copy certifications provide certified facsimiles of documents. What cannot be certified Documents that can be obtained within Colorado from a Clerk and

Recorder, Vital Records Section, or other government agency.

This means you cannot certify Colorado birth, death, marriage, or

divorce certificates.

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More About Copy Certifications

Please refer to section 12-55-120 of the law. The written request the customer is required to provide should state

that a certified copy of the document cannot be obtained from a clerk and recorder of public documents or custodian of documents in CO and that the production of a copy of the document does not violate any state or federal law.

Section 12-55-120 also provides the exact wording to use in the

notarial certificate.

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Copy Certifications Process

Step 1 • Record the transaction in your notary journal Step 2 • Identify the client using “Satisfactory Evidence” Step 3 • Obtain written request from the client Step 4 • See the original document Step 5

• Receive or make two copies of the document; one is kept by the notary - best

practice Step 6

• Verify that the copies are complete, exact facsimiles of the original and certify the

client's copy

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Notarial Certificate (Copy Certification)

State of Colorado

ss

County of Boulder I, Jane J. Jefferson, a Notary Public in and for said state, do certify that on July 1, 2011, I carefully compared with the original the attached facsimile

• f the University of Colorado diploma awarded to Anne Austin on May

25, 2010 and the facsimile I now hold in my possession. They are complete, full, true, and exact facsimiles of the document they purport to reproduce.

Jane J. Jefferson

Jane J. Jefferson Notary Public My Commission expires:___________

Stamp of Seal

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Sample Written Request

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Authentications

A certificate signed by the Secretary of State that the notary has

been commissioned and that the commission is current

Attached to notarized documents that are to be used outside the

United States

The Secretary of State receives 2,000 documents per month that

need to be authenticated

About 25% are defective, usually because the notarization is

invalid

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Types of Authentications

Apostille Goes to members of the Hague Convention of 1961 Certificate of Magistracy Goes to all other countries

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A Note about Authentications

A careless and incomplete notarization can have severe

consequences for a person who is trying to use a notarized document overseas.

You can refer customers who mention that their document is going to

be filed overseas to the Secretary of State’s website for instructions

• n submitting the document to their office to obtain the

authentication certificate.

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Notarizing Foreign Language Documents

Like all other notarial acts, you are only notarizing the signature and

not the contents of the document.

However, the notary must be able to speak the language of the

signer to ensure the identity and willingness to sign.

The notary must also be able to read the notarial certificate. Since others can translate incorrectly, either intentionally or

erroneously, the notary must not rely on a third-party translator.

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Petition Circulator Notarizations

If these are notarized incorrectly, the signatures are not counted. Requires the following Circulator signs in the physical presence of the notary Circulator has fully completed attached affidavit Circulator presents a form of identification Notary records type of identification presented (specific identification standards) Colorado driver’s license, United States passport, copy of utility bill, bank

statement, etc. (see 1-1-104 (19.5), C.R.S. for full list)

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Electronic Notarization

“Electronic notarization” does not mean remote notarization. Physical presence, notary certificates, and no blanks in the document

are still requirements

A notary must be certified to notarize electronically Electronic notarization is not widely-demanded Notarization of electronic documents http://www.sos.state.co.us/pubs/notary/eNotary.html

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Electronic Notarization Process

Step 1 • Record the transaction in your notary journal Step 2 • Identify the client using “Satisfactory Evidence” Step 3

• Signer acknowledges in your physical presence that the document

was signed by him or her and administer an oath Step 4 • Complete the notarial certificate Step 5 • Attach a “DAN” (Document Authentication Number)

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DAN – Document Authentication Number

This is the electronic legal equivalent of using a notary stamp.

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Things that a Notary CAN do

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You CAN Do the Following

You can notarize documents that you prepared if you are an

attorney.

You can notarize documents if you are an employee of a company

and get paid.

You can notarize wills, deeds, and powers of attorney

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Things that a Notary CAN’T do

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You Cannot Do the Following

You may not notarize your own signature You may not notarize any document without using a notarial certificate. Sample certificates have been provided in this presentation and more can

be found in the Notaries Public Act and the Notary Handbook

You may not notarize a document that contains blank spaces. Examples: Parenting plans, deeds, etc. Blanks do not have to be filled in with specific information, but should have

an “X,” “not applicable,” or a line preventing later writing.

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More Things You Cannot Do

You may not perform marriages. Unless you are an attorney, you may not perform attorney services,

including explaining the contents of documents or acting as an immigration consultant.

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Advertising Requirements

You may not engage in false or misleading advertising Example: saying that you provide attorney services if you are not an

attorney

If your advertising is in a foreign language, it must also contain

English and foreign disclaimers.

The words “Notario” or “Notario Publico” are not permitted.

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Protecting Persons At Risk

This is a high crime priority for the State of Colorado, enforced by the Secretary of State and

the Attorney General.

Dementia: Such a want of reason, memory, and intelligence that prevents a person from

comprehending the nature and consequences of his acts or comprehending right from wrong

Lucidity: If the individual, elderly or not, is not lucid, the notarial act should not be performed. You should engage in conversation with the client to determine lucidity and lack of dementia. Best practice: If in doubt, clear family members from the room Be aware when notarizing wills, power of attorneys, real property instruments – especially quit

claim deeds.

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Misconduct and Liability

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Misconduct Responsibility

Vancura v. Katris (December 2008) Illinois Appellate Court ruled that a notary’s employer can be held

liable for an employee notary’s misconduct.

Illinois Supreme Court reversed the decision in 2010: the notary

alone is responsible.

The notary is responsible for faithfully performing, to the best of

his or her ability, all notarial acts in conformance with the law.

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Types of Liability

• Secretary of State
• Admonition letter, suspension, revocation
• Lose notary commission or license to practice law

Administrative

• Retained Attorney
• Liable for damages proximately caused by the notary’s

misconduct

Civil

• Police department and District Attorney
• Possible felony charges
• Examples: taking advantage of the elderly, forgery, etc.

Criminal

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Notary Investigations are Prompted by

A signed complaint Typical concerns are lack of physical presence, blanks in the document, disqualifying

interests, etc.

Upon the initiative of the Secretary of State Typical concerns are out of date information (e.g., address, etc.), notarizations missing the

commission expiration date, signature does not match name on seal, improper seal, etc.

Dishonesty on application (i.e., age) False or misleading advertising These can cause a revocation of your notary commission

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Revocation Process

The notary is informed of a complaint and has a chance to respond If there are still concerns, further investigation is conducted If concerns remain, the notary is invited to a public hearing with the

• pportunity to defend

If the commission is revoked, the notary must immediately deliver

the seal and journal to the Secretary of State.

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Administrative Requirements

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Requirement to Inform

You are required to inform the Secretary of State in writing if you: Misplace your Notary Seal Misplace your Notary Journal

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Current Information

You are required by law to update your information if it changes. Changes of your name or address must be reported in writing to the

Secretary of State within 30 days of the change.

Changes must be made online. http://www.sos.state.co.us No fee is charged for submitting changes.

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Reappointment

Notary commissions last four years. You may renew up to 90 days before your commission expires. A courtesy reminder of commission expiration is sent via email. Notaries that reapply within the 90 day period or within 30 days after

expiration are not required to attend training or complete the state exam.

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Resignation

Reasons for resignation. Do not intend to renew at the end of the commission Choose to resign the commission Move out of the state of Colorado Resignation process Send a letter of resignation to the Secretary of State Send seals, journals, and related papers to the Secretary of State.

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Employment Separation

You are the Notary Public. Your employer is not. The commission stays with the notary, even if the employer paid for

supplies, training, or the application fee.

The notary must retain the seals, journals, and other related papers. You are the one accountable to the people of Colorado and state

law.

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