In the past few weeks, I have had two different clients who encountered difficulty in having a notary public verify their signature of legal documents. In the first case, the notary objected because he could not independently confirm whether the statements in an affidavit were true. In the second case, the notary objected because the document was designed to permit the signer to add to a listed schedule of assets of a trust, rather than having all the assets listed before being signed. In both cases, we advised our clients that our office staff would gladly provide notary services that were being improperly withheld.
The role of a notary public in Pennsylvania is defined by statute. The legislature adopted the Revised Uniform Law on Notarial Acts (“RULONA”) which was signed into law on October 9, 2013. Section 302 of RULONA defines six “notarial acts”:
- taking an acknowledgment;
- administering an oath or affirmation;
- taking a verification on oath or affirmation;
- witnessing or attesting a signature;
- certifying or attesting a copy or deposition; and
- noting a protest of a negotiable instrument.
None of those acts purport to include any power to investigate the underlying matter. That fact is made abundantly clear by the definition of each of the notarial acts.
An acknowledgment is defined as “a declaration by an individual before a notarial officer that . . . the individual has signed a record for the purpose stated in the record.” Section 305(a) explains that the duty of the notary is to determine that “the individual appearing before” him “has the identity claimed” and that the “signature on the record is the signature of the individual.” That is, the notary simply witnesses that the individual appearing before him signed the statement, not that the statement is true.
When administering an oath of affirmation, the notary does not vouch for the truth of the statements made by the individual being placed under oath any more than upon administering an oath in open court a bailiff or court clerk is responsible to determine whether the testimony of a witness is truthful.
A notary taking a verification on oath or affirmation means that the notary asks someone to swear that statements are true, not that the notary is swearing they are true. The process is defined as “[a] declaration, made by an individual on oath or affirmation before a notarial officer, that a statement in a record is true.” Section 305(b) explains that the duty of the notary is to determine that “the individual appearing before [him] and making the verification has the identity claimed” and that the “signature on the statement verified is the signature of the individual.”
When witnessing a signature, the notary represents only that the stated individual signed the document. Section 305(c) explains that the duty of the notary is to determine that “the individual appearing before [him] and signing the record has the identity claimed” and that the “signature on the record is the signature of the individual.” Similarly, when a notary is certifying a copy, he represents only that the copy truly reflects the original, not that statements in the original document are true. Section 305(d) explains that the notary “shall determine that the copy is a complete and accurate transcription or reproduction of the record or item.”
Although certain portions of RULONA were amended on July 9, 2014, in Act 119, none of the amendments address the provisions at issue here.
I feel silly for having to write this explanation. The Pennsylvania Association of Notaries (“PAN”) was incredulous when I explained the problem. PAN publishes a “practical guide” for notaries in Pennsylvania. It explains with respect to an affidavit, for example:
Your customer—called an affiant in this case—is responsible for the truth and accuracy of the statement he or she makes on the affidavit. You are responsible for guaranteeing, by your signature and seal, that the customer personally appeared and was properly identified, and that you administered an oath or affirmation. You are also responsible for guaranteeing that the customer signed the affidavit in front of you.
Hopefully these explanations may help to minimize future refusals to provide notary services. If a notary still improperly refuses to provide service, complaints may be filed with the Secretary of the Commonwealth. An on-line complaint form can be found here.