A)  ELECTRONIC NOTARIZATION

     The Pennsylvania Department of State is pleased to announce the start of Phase I of the Electronic Notarization Initiative, effective January 30, 2006. See the below links for more information about the Initiative (FAQ's, application form and procedures, list of participating counties, PA state law governing electronic transactions).

     Frequently Asked Questions about the Electronic Notarization Initiative

     Electronic Notary Public Application and Instructions

     Eight Steps to Becoming an Electronic Notary in Pennsylvania

     List of Participating County Recorders of Deeds for Phase I Electronic Notarization Initiative

     Uniform Electronic Transactions Act, Senate Bill 555
 

• the signer is not present;

• the document is incomplete or blank;

• the notary is the signer;

• the signer has been adjudicated mentally incapacitated and has not been restored to capacity as a matter of record;

• the notary does not personally know the signer and the signer cannot produce acceptable identification;

• the notary is a party to the underlying transaction or has a financial interest in it; or

• the signer does not speak English and there is no one available to translate the document into a language the signer understands.

     There are other precautionary reasons for which a notary should refuse to notarize. These situations occur when:

• the document does not have a prepared notary certificate, and the signer cannot tell the notary what notarial act is required;

• the notary believes that the signer is being coerced or does not understand the consequences of signing the document;

• the signer appears to be drunk, sedated, or disoriented; or

• the notary knows or suspects that the transaction is illegal, false, or deceptive.

In addition to the situations described above, a notary may refuse to perform a notarization in a variety of circumstances, such as when:

• the signer cannot pay the notary's fee for services;

• it is before or after the notary's regular office hours;

• it is a holiday;

• the notary is busy with other work or activities;

• the notary would be inconvenienced;

• the notary is sick;

• the notary is not comfortable with the request;

• the signer is a minor;

• the document is written in a foreign language that the notary does not understand; or

• the notary is requested to travel to another location.

     A refusal to notarize may be viewed as an inconvenience to the signer or may be misinterpreted as unlawful discrimination. Therefore, notaries should be careful to refuse in a tactful manner. Tactfulness should not be a problem when the refusal is based on one of the prohibitions by law, such as when the document is incomplete. The notary should explain that the law prohibits notarizing in that situation.

     However, the situations in which a notary should refuse for precautionary reasons may be more difficult to explain. For example, suppose a notary suspects that the signer is being coerced or that the transaction may be illegal. In such situations, it may be best for notaries to simply explain that they are not comfortable with notarizing that document. No further explanation is necessary. Another good approach is for the notary to state that he or she is not familiar with the type of document involved. It is best not to be drawn into a debate regarding the refusal.

     The reason for prohibiting the unlicensed practice of law is to protect the public from incompetent, unethical, or irresponsible representation it is not done to protect lawyers.

     Now, exactly what services can you provide without engaging in the unlicensed practice of law? Generally speaking, a non-lawyer may only sell legal forms and then type those forms which have been completed in writing by the customer. As an example, you could sell a will form to an individual. The customer would have to fill in the blanks for the factual information customizing the will to his or her own needs. You can have no oral communication with the customer regarding how the form should be completed, and you may not correct mistakes. You may simply type the information written down by the customer.

     Under no circumstances may you give legal advice about possible remedies or courses of action in any legal matters.  You are prohibited from counseling your customer about appropriate legal action.

     Not only can a non-lawyer run into problems when assisting an individual in completing forms, the non-lawyer also runs afoul of the unlicensed practice of law if the non-lawyer gives legal advice. This is especially problematic where the customer is relying on the non-lawyer for proper advice and guidance. Generally, if the advice affects an individual's important legal rights, it will probably be viewed as legal advice. For example, your friend needs to authorize another member of her family to provide care for her child while she is temporarily out of the country. Because you are a notary public, she asks you to advise her. So, you assist her in preparing and wording a power of attorney. Unfortunately, you just engaged in the unlicensed practice of law.

     As a notary public, you are held to a higher standard than other  individuals because you are holding a position of trust.  This trust is violated if improper legal advice and services are provided. The public is harmed and notaries are held in disrespect. By consistently observing the restrictions placed upon you as a non-lawyer notary public, abuses can be prevented and the public can be spared unnecessary expense and hardship.        

     What constitutes financial interest? There is no exact answer to this question. Although the term is not defined in the notary laws, there are some clear examples of financial interest. For instance,  when a notary receives a sales commission on the transaction at hand (the sale of an automobile, an insurance policy, real estate, etc.), he or she would be prohibited from notarizing the signatures those persons involved. Additionally, the owner of a business should not notarize signatures on documents pertaining to his business transactions.  A salaried employee (if not related to the document signer) is exempt from this. However, what about a notary whose spouse owns the business and he or she receives no salary?  Experts on notary issues agree that the spouse of the business owner would probably have a financial interest in the transactions of that business, and therefore, should not notarize in these instances.

     When you are unsure whether you are a party to or have a financial interest in a particular transaction, it is always safer to err on the side of caution and decline to notarize the signature. Keep in mind that, as a notary, you should be a disinterested third party who, if called upon to testify about the transaction, would be completely detached from all parties and appear unbiased in your testimony.

     A notary by definition is an objective witness to the execution of important documents.