Notary Public Exam Prohibited Acts and Penalties — Questions and Answers
Question 1: A notary who is not an attorney is asked by a signer which type of deed to use. What should the notary do?
- Recommend a quitclaim deed
- Decline to advise and suggest the signer consult an attorney (Correct answer)
- Choose the deed with the lowest fee
- Fill in the deed for the signer
Correct answer: Decline to advise and suggest the signer consult an attorney
Advising a signer on which legal document to use is giving legal advice, which is the unauthorized practice of law for a non-attorney notary.
A notary who is not licensed to practice law may not advise clients about legal matters, including which document or notarial act best suits their situation, how to fill out a legal document, or what the legal effect of a document will be. Doing so is the unauthorized practice of law, a violation that can result in loss of commission, fines, and in some states criminal charges. The notary may explain the difference between an acknowledgment and a jurat in general terms but should not choose for the signer; the signer or the document's drafter must decide.
Question 2: Which of the following is a prohibited act for a notary in virtually every state?
- Notarizing a document written in a language the notary can read
- Notarizing a document when the signer is not physically or, where permitted, electronically present (Correct answer)
- Charging a fee below the statutory maximum
- Recording the act in a journal
Correct answer: Notarizing a document when the signer is not physically or, where permitted, electronically present
Personal appearance of the signer before the notary is a fundamental requirement. Notarizing without the signer present is one of the most serious violations a notary can commit.
Every state requires the signer to appear before the notary at the time of the notarization, either in person or, under remote online notarization laws, through approved audio-visual technology. Notarizing a signature when the signer is absent, even at the request of a trusted employer or family member, is a false certificate and can be prosecuted as a crime. It also exposes the notary to civil liability for any resulting loss. No level of familiarity with the signer or the signature excuses the presence requirement.
Question 3: A notary is asked to notarize a document in which the notary is named as a beneficiary. What is the correct action?
- Proceed, since the notary knows the facts well
- Refuse, because the notary has a disqualifying financial or beneficial interest (Correct answer)
- Proceed but waive the fee
- Have a coworker sign the certificate instead
Correct answer: Refuse, because the notary has a disqualifying financial or beneficial interest
A notary may not notarize a document in which they have a direct financial or beneficial interest. The notary must be an impartial witness.
Most states prohibit a notary from performing a notarial act on a document in which the notary is a party or from which the notary will receive a direct benefit, such as being named as a grantee, beneficiary, or payee. Many states also bar notarizing for a spouse, and some extend the prohibition to other close relatives. The purpose is to protect the integrity of the act; an interested notary could be tempted to overlook problems or could later be accused of doing so. The remedy is simple: find another notary who is disinterested.
Question 4: Which of the following is generally considered a false certificate?
- A certificate that lists the correct venue
- A certificate stating the signer personally appeared when the signer did not (Correct answer)
- A certificate signed with the notary's commissioned name
- A certificate dated the day the notarization took place
Correct answer: A certificate stating the signer personally appeared when the signer did not
A false certificate contains a statement the notary knows to be untrue, such as claiming personal appearance, identification, or an oath that never occurred. Issuing one is a serious offense.
The notarial certificate is the notary's sworn or official statement of what happened. If any element is untrue, such as the date, the signer's appearance, the identification method, or that an oath was administered, the certificate is false. In many states, knowingly executing a false certificate is a felony or misdemeanor, and it almost always results in revocation of the commission. Backdating or postdating a certificate is a common example. A notary should never sign a certificate without personally verifying every statement in it.
Question 5: A non-attorney notary advertises in Spanish using the term 'notario publico'. Why is this a problem in many states?
- Advertising by notaries is always banned
- In many Latin American countries a notario is a highly trained legal professional, so the term misleads the public into thinking the notary can give legal advice (Correct answer)
- The term is trademarked
- Spanish-language advertising requires a translation license
Correct answer: In many Latin American countries a notario is a highly trained legal professional, so the term misleads the public into thinking the notary can give legal advice
Because a notario publico in many civil-law countries is an attorney-like official, several states prohibit non-attorney notaries from using the term or require a disclaimer that they are not attorneys.
In Mexico and other civil-law countries, a notario publico is a lawyer with authority to draft legal documents and provide legal advice. Immigrants may therefore assume a U.S. notary has the same powers. To prevent exploitation, states such as California, Texas, Florida, and Illinois restrict or prohibit non-attorney notaries from using 'notario' or 'notario publico' in advertising, and many require any foreign-language ad to include a statement that the notary is not an attorney and cannot give legal advice or accept fees for legal advice. Violations can result in fines, suspension, or revocation.
Question 6: A notary notarizes a document but leaves the certificate undated and unsigned so the signer can 'fill it in later'. Which best describes this conduct?
- Acceptable if the signer is trustworthy
- A prohibited incomplete certificate that undermines the notarization (Correct answer)
- Standard practice for real estate closings
- Permitted if the journal entry is complete
Correct answer: A prohibited incomplete certificate that undermines the notarization
A notary must complete the certificate at the time of the act, including the date and signature. Leaving it blank invites fraud and is a violation in every state.
The notary is the only person who may complete the notarial certificate, and it must be completed at the time the act is performed. Signing a blank or incomplete certificate, or allowing someone else to add the date or venue later, means the notary is certifying facts they did not witness. Many states specifically prohibit notaries from affixing their seal or signature to a blank certificate. If a document arrives with a pre-printed certificate that is missing information, the notary should fill in the correct information at the time of the act, not leave it for others.
Notary Public Exam Prohibited Acts and Penalties
A notary who is not an attorney is asked by a signer which type of deed to use.
What should the notary do?