Course Overview. Colorado Notary Public Course Aardvark Notary Training aardvarknotarytraining.com

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1 Course Overview Colorado Notary Public Course Aardvark Notary Training aardvarknotarytraining.com What is a Notary? How to Become a Notary The Notary s Toolbox Notary Public Powers Misconduct and Liability Administrative Requirements 1 2 Sources For This Presentation Colorado Notary Public Law Colorado Notary Handbook Model Notary Act What is a Notary? Colorado Secretary of State Website RULONA - Revised Uniform Law on Notarial Acts Best Practices 3 4

2 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. 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). 5 6 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. 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. 7 8

3 How to Become a Colorado Notary Public 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 9 10 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. Lawful Presence Acceptable Identification Colorado Drivers License or ID Native American Tribal ID U.S. Military or Dependent ID Card U.S. Passport U.S. Merchant Mariner Card 11 12

4 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. Steps to Apply Attend Authorized Training Course Pass State Exam Complete and Print Online Application Have Signature Notarized and Submit Online 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. 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) As part of your application, you will swear under penalty of perjury that you have read the notary law of Colorado

5 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 address Work s over-filter spam 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) If you change jobs you ll still have access Signature Affirmation Form The signature that you use on your affirmation form will become your official 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

6 Notarial certificate Required Items The Notary s Toolbox Required Items Notary seal Notary journal Physical presence Satisfactory evidence No disqualifying interest 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 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 Notary Seal 23 24

7 Notary Seal Concerns Name misspelled or does not match official name on record with the Secretary of State Incorrect Seals 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 More Incorrect Seals Is This Seal Okay? 27 28

8 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. 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. Lost journals must be reported to the Secretary of State Notary Journal Required Elements Notary Journal Optional Best Practices 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 Include in the Journal: Type of Identification (not number) Thumbprint of signer Customer should sign Journal first. Name, address, and signature of each witness 31 32

9 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.) 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 Satisfactory Evidence Personal Knowledge Personal Knowledge Credible Witness 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. Identification An example is performing notarizations for your supervisor

10 This is the least preferred method. Credible Witness A third person vouches for the identity of the person who you do not personally know or 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. 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 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 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

11 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) 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 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. Notary Public Powers 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 43 44

12 Most Used Powers Oaths and Affirmations Jurats: statements that are sworn to or affirmed. So help me God Oaths and Affirmations Acknowledgements Copy Certifications 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 Oaths and Affirmation Process Step 1 Step 2 Step 3 Step 4 Step 5 Record the transaction in your notary journal Identify the client using Satisfactory Evidence Administer the Oath or Affirmation Watch the client sign in your physical presence Complete the Notarial Certificate 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 47 48

13 Jurat for Oath or Affirmation State of Colorado 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: ss Stamp of Seal 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 Acknowledgements Process Model Notary Act (Acknowledgements) Step 1 Record the transaction in your notary journal Step 2 Step 3 Step 4 Identify the client using Satisfactory Evidence Client acknowledges in your physical presence that he or she signed the document Complete the notarial certificate 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

14 Notarial Certificate (Acknowledgement) Signature Banks State of Colorado County of Larimer ss 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 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 Oath/Affirmation or Acknowledgement? Copy Certifications Copy certifications provide certified facsimiles of documents. 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. 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

15 More About Copy Certifications Please refer to section 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 also provides the exact wording to use in the notarial certificate. Copy Certifications Process Step 1 Step 2 Step 3 Step 4 Step 5 Step 6 Record the transaction in your notary journal Identify the client using Satisfactory Evidence Obtain written request from the client See the original document Receive or make two copies of the document; one is kept by the notary - best practice Verify that the copies are complete, exact facsimiles of the original and certify the client's copy Notarial Certificate (Copy Certification) State of Colorado County of Boulder ss 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 of 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 Sample Written Request 59 60

16 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 Types of Authentications Apostille Goes to members of the Hague Convention of 1961 Certificate of Magistracy Goes to all other countries 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 on submitting the document to their office to obtain the authentication certificate. 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

17 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 (19.5), C.R.S. for full list) Electronic Notarization Electronic notarization does not mean remote notarization. Physical presence, notary certificates, and no blanks in the document are still requirements Electronic Notarization Process Record the transaction in your notary journal Step 1 Identify the client using Satisfactory Evidence Step 2 A notary must be certified to notarize electronically Electronic notarization is not widely-demanded Notarization of electronic documents Step 3 Step 4 Step 5 Signer acknowledges in your physical presence that the document was signed by him or her and administer an oath Complete the notarial certificate Attach a DAN (Document Authentication Number) 67 68

18 DAN Document Authentication Number This is the electronic legal equivalent of using a notary stamp. Things that a Notary CAN do 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. Things that a Notary CAN T do You can notarize wills, deeds, and powers of attorney 71 72

19 You Cannot Do the Following You may not notarize your own signature More Things You Cannot Do 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. 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. Blanks do not have to be filled in with specific information, but should have an X, not applicable, or a line preventing later writing 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. 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

20 Misconduct Responsibility Misconduct and Liability 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 Types of Liability Notary Investigations are Prompted by Administrative Civil Criminal Secretary of State Admonition letter, suspension, revocation Lose notary commission or license to practice law Retained Attorney Liable for damages proximately caused by the notary s misconduct Police department and District Attorney Possible felony charges Examples: taking advantage of the elderly, forgery, etc. 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 79 80

21 Revocation Process The notary is informed of a complaint and has a chance to respond If there are still concerns, further investigation is conducted Administrative Requirements If concerns remain, the notary is invited to a public hearing with the opportunity to defend If the commission is revoked, the notary must immediately deliver the seal and journal to the Secretary of State Requirement to Inform Current Information You are required by law to update your information if it changes. You are required to inform the Secretary of State in writing if you: Misplace your Notary Seal Misplace your Notary Journal 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. No fee is charged for submitting changes

22 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 . 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. 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 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. 87