By Michael Closen and Timothy Reiniger on November 13, 2018 in Best Practices
(Originally published in the September 2018 issue of The National Notary magazine.)
Throughout human history, people have signed documents the same way: with pen and ink. Sometimes they wrote out their names. Sometimes they made a mark. But in the modern age, signatures can take on many different forms: handwritten, signature stamp, a digital certificate, a typed name on a pdf, a checked box on your Amazon order and more.
For Notaries, this poses a 21st century challenge. Your task is to verify that the signature on a document belongs to the person who appears before you. But exactly what constitutes a signature? What makes a signature acceptable? And how would you know whether a symbol, a checked box or a typed name on a digital document is a genuine signature?
For all the technological advancements of the 21st century, countless times a day we still put pen to paper to sign our names to all kinds of documents: from credit card receipts to school permission slips to home purchases to laws enacted by Congress.
The way we do this has not changed much since humankind invented writing and paper. People generally sign paper documents in only a couple of ways — by handwriting their name on a document with pen and ink, or by making a mark to represent their signature. This can be a symbol impressed in wax on a paper document, or by drawing an “X” by hand.
One of the most basic features of every paper notarization is the signature, whether an individual signs in front of the Notary or acknowledges that the signature is his or hers. Nevertheless, the signature can be the source of much confusion, mistaken notarial practice, and possibly invalidate the notarization.
What Defines A Signature For Notaries?
Under the law in every state, a signature can be any mark or symbol which the signer intends to serve as her or his symbol to authenticate the document. Thus, a signature can be a handwritten name, a printed or typed name, or a symbol of some sort such as an “X” or a signature stamp.
For a notarization, as long as the signature is either signed or acknowledged in front of you, it is acceptable for notarization.
If the signer is physically unable to write a signature, the law will accommodate the signer in one of two ways. However, before addressing those two methods of accommodation, we should emphasize that the signer is the one to determine whether he or she is unable to write a conventional signature and wishes to use an alternative. The law does not require it to be impossible for the signer to handwrite a signature, nor does it require you to demand proof of inability of the signer to personally perform the signing. Perhaps, the signer is uncomfortable with physical signing or has developed a shaky hand and is embarrassed to personally attempt to sign. It should be up to the signer to choose the method for signing.
The signer should be permitted to seek accommodation and allowed to utilize one of two methods:
• Use a signature by a mark or symbol, or
• Authorize a surrogate to execute a signature on her or his behalf.
In either case, the signature can be notarized.
Notarizing A Signature By Mark
Regarding a signature by mark or symbol, the classic example is the handmade “X.” But, another mark or symbol can be used, including the image from a signature stamp bearing a facsimile of the signer’s signature or the printed name of the signer.
In some jurisdictions, there is a specified procedure to follow in conducting a notarization of a signature by mark, such as the need for one or two witnesses and noting of the use of a mark in the notarial certificate. In other jurisdictions, the notarization of a signature by mark is handled as the notarization of any other signature.
In either case, you should prepare a detailed Notary journal entry describing the circumstances regarding the signing by mark.
Can You Notarize A Signature By Surrogate?
For the use of a surrogate, there also are two possible options. Some jurisdictions have Notary laws specifying how to conduct the signing by a surrogate (perhaps by you or another individual) and the notarization of the signature executed by the surrogate.
If the jurisdiction in question has no such law, you should allow a third person to sign on behalf of the signer with the signer’s consent and should fully note such circumstances in both the notarial certificate and the journal entry.
What To Do About Illegible Signatures
Everyone jokes about the unreadable signatures which doctors scribble, but the truth is that many people’s signatures are illegible. And that’s OK because you should be sure the signer’s name and signature are correctly recorded — so we will be able to tell whose signature was affixed.
You should legibly write or print the signer’s name in both the notarial certificate and the journal entry (and will compare the name and signature with those appearing on the signer’s ID[s]). You also should require the signer to place a signature in the journal entry for every type of document notarization. This will give you three signatures or scribbles to compare. Hence, you can exercise reasonable care in regard to the signature issue, so an illegible signature is not really a problem after all.
Originals Versus Copies Of Signatures On Paper
For signatures on paper documents, the law has always required that only original signatures may be notarized. This view coincides nicely with the prevailing requirement for the document signer to be physically in the presence of the Notary during the notarization.
On the other hand, copies or photocopies of signatures cannot be notarized. Thus, for example, you could not notarize a signature on a paper document when communicating with a signer at another location by audio-video technology if the original document were not in your possession. (Note: Only Montana permits remote notarization of paper documents, but the document must be in the Notary’s possession.) Even if the signer were to sign a document on camera in your view and immediately fax it to you, you could not notarize it. The reason for this is that the signature received by fax would be a copy — not the original.
Keep Compassion And Accommodation In Mind
Remember, no mentally competent person should be denied notarial service simply because he or she is unable to write a traditional signature. If a competent individual is unable to write a traditional ‘John Hancock’ signature, there will always be a way to accommodate the individual to permit the affixing of a signature that the law will approve and that can then be notarized.
The savvy Notary who is careful and thorough should never be surprised or confused by issues regarding signatures, especially if you undertake a diligent identification of the signer and record the details of the notarization in the notarial certificate and your journal.
Michael Closen is Professor Emeritus at the John Marshall Law School in Chicago, Illinois. A respected consultant on model Notary statutes and legislation, Closen served on the drafting committees for The Notary Public Code of Professional Responsibility and various editions of the Model Notary Act, and recently authored the book, Professor Closen’s Notary Best Practices: Expert's Guide to Notarization of Documents.
Timothy Reiniger is a licensed attorney in California and Washington, D.C. He leads the Timothy Reiniger LLC advisory practice from Cape Elizabeth, Maine. He is an author of the Virginia online notarization law as well as the Virginia Digital Identity Management Law. As a nationally recognized expert on the Notary office and identity policy, he has testified before the U.S. House Judiciary Committee and The Hague Conference on Private International Law, and was appointed as an ABA Advisor to the Uniform Law Commission Committee for the Revised Uniform Law on Notarial Acts.