HI Notary Legal and Ethical Considerations 2 — Questions and Answers

Question 1: Under Hawaii law, which government official oversees notary public commissions?

The Governor
The Attorney General (Correct answer)
The Secretary of State
The Lieutenant Governor

Correct answer: The Attorney General

In Hawaii, the Attorney General's office is responsible for commissioning and overseeing notaries public, unlike most states where the Secretary of State holds this role.

Hawaii is one of the few states where the Attorney General, rather than the Secretary of State, oversees notary public commissions. The Attorney General's office handles notary applications, renewals, complaints, and disciplinary proceedings. This includes reviewing qualifications, administering the commissioning process, maintaining records of all active notaries, and investigating complaints of notary misconduct. Hawaii does not have a Secretary of State position, so many functions that office handles in other states are distributed among other officials, with notary oversight falling to the Attorney General.

Question 2: What is the legal significance of a jurat compared to an acknowledgment in Hawaii?

They are identical legal instruments
A jurat requires the signer to swear or affirm the truthfulness of the document; an acknowledgment confirms the signer's identity and voluntary signing (Correct answer)
A jurat is only for real estate; an acknowledgment is for all other documents
An acknowledgment requires an oath; a jurat does not

Correct answer: A jurat requires the signer to swear or affirm the truthfulness of the document; an acknowledgment confirms the signer's identity and voluntary signing

A jurat involves administering an oath or affirmation about the document's truthfulness, while an acknowledgment verifies the signer's identity and that they signed voluntarily.

In Hawaii, a jurat and an acknowledgment serve distinct legal purposes. A jurat (also called a verification on oath or affirmation) requires the signer to swear or affirm before the notary that the contents of the document are true and correct. The document must be signed in the notary's presence. An acknowledgment, by contrast, does not involve any statement about the document's truthfulness. Instead, the signer acknowledges to the notary that they signed the document voluntarily and that the signature is theirs. The document may have been signed prior to appearing before the notary. Choosing the wrong notarial act can have serious legal consequences.

Question 3: Hawaii law requires a notary to refuse service in which of the following situations?

The signer does not speak English
The document is written in a foreign language
The signer cannot produce satisfactory identification (Correct answer)
The notarization is requested after 5:00 PM

Correct answer: The signer cannot produce satisfactory identification

A notary must refuse to notarize if the signer cannot be satisfactorily identified through acceptable means, as identification is a core requirement of every notarial act.

The ability to satisfactorily identify the signer is a non-negotiable prerequisite for any notarial act in Hawaii. If the signer cannot produce acceptable identification -- whether through a current government-issued photo ID, credible identifying witnesses, or the notary's personal knowledge -- the notary must refuse the notarization. There are no time-of-day restrictions on when notarizations can be performed, documents in foreign languages can be notarized (since the notary certifies the signer's identity, not the document's content), and the signer's English proficiency is not a barrier as long as the notary can communicate sufficiently to verify identity and willingness.

Question 4: Which of the following best describes the unauthorized practice of law by a Hawaii notary?

Administering oaths for affidavits
Advising a client on which type of deed to use for their property transfer (Correct answer)
Attaching a notarial certificate to a document
Recording a notarial act in a journal

Correct answer: Advising a client on which type of deed to use for their property transfer

Advising on which legal instrument to use constitutes legal advice, which is the unauthorized practice of law when done by a non-attorney notary.

The unauthorized practice of law (UPL) occurs when a notary performs tasks that require a law license, such as advising on legal instruments, drafting legal documents, or interpreting legal rights. Telling a client which type of deed to use for a property transfer is legal advice that requires understanding property law, the parties' circumstances, and tax implications. Only a licensed attorney should provide such guidance. In contrast, administering oaths, attaching notarial certificates, and maintaining a journal are all standard notarial duties. Hawaii takes UPL seriously, and a notary who engages in it may face criminal charges, civil penalties, and commission revocation.

Question 5: Under Hawaii's notary statutes, what must a notary do before administering an oath?

Verify the person's religious affiliation
Have the person raise their right hand
Determine whether the person prefers an oath or affirmation (Correct answer)
Obtain written permission from a judge

Correct answer: Determine whether the person prefers an oath or affirmation

The notary should determine whether the person prefers an oath (invoking a deity) or an affirmation (a secular pledge), as both are legally equivalent in Hawaii.

Hawaii law recognizes both oaths and affirmations as legally equivalent. An oath traditionally involves invoking a higher power (e.g., 'Do you swear...so help you God?'), while an affirmation is a secular pledge without religious reference (e.g., 'Do you affirm under penalty of perjury...'). Before administering either, the notary should ask the person which they prefer, respecting their religious beliefs or lack thereof. Requiring a specific religious form could violate the person's constitutional rights. Raising the right hand is traditional but not legally required, no judicial permission is needed, and religious affiliation is irrelevant and improper to inquire about.

Question 6: A Hawaii notary notarizes a document that is later found to be forged. Under what circumstances would the notary be held legally responsible?

Always, because the notary certified the document
Only if the notary failed to properly identify the signer or was negligent in performing their duties (Correct answer)
Never, because detecting forgery is not a notary's responsibility
Only if the forged document involved real estate

Correct answer: Only if the notary failed to properly identify the signer or was negligent in performing their duties

A notary is liable only if they failed to follow proper identification procedures or were otherwise negligent. They are not expected to detect sophisticated forgeries.

A Hawaii notary's liability for a forged document depends on whether they exercised reasonable care in performing their duties. Notaries are not document forensics experts and are not expected to detect sophisticated forgeries of the documents themselves. However, they are expected to properly identify the person presenting the document through acceptable means. If the notary failed to check identification, accepted expired or suspicious ID, ignored signs of impersonation, or skipped required procedures, they may be held negligent and liable. The key legal standard is whether a reasonably careful notary would have detected the problem under the same circumstances.

HI Notary Legal and Ethical Considerations 2

Under Hawaii law, which government official oversees notary public commissions?