By Bill Anderson on March 2, 2016
Updated 11-30-21. The best way to protect yourself from being sued for performing a notarization is to require every signer to appear in person before you.
In fact, every state requires signers to personally appear before a Notary to thwart forgeries and frauds involving notarized documents. Requiring a signer to be present allows you to properly identify the signer and complete all the other proper steps of a notarization. It also may deter individuals bent on committing crimes from carrying out their plans.
Legal Consequences Of Notarizing Without Personal Appearance
Most lawsuits against Notaries happen because they notarized the signature of someone who wasn’t present. Here are actual examples:
A candidate was disqualified in a local election because the signature gatherers were not present before the Notary when their signatures were notarized on his nominating papers.
Thousands of borrowers lost their homes when employees of mortgage servicers notarized affidavits supporting scores of foreclosures without the signers present.
An elderly individual lost his life savings when a “caregiver” asked the individual to sign a power of attorney naming the caregiver as his agent and then had it notarized without the individual knowing it and being present before the Notary.
An employee of a small business asked the owner, who was a Notary, to notarize a signature on a grant deed. The owner didn’t realize the employee had forged his parent’s signature. This enabled the employee to take out a large refinance loan on the property without his parent knowing it.
In these and other instances, the Notaries faced their own legal consequences of failing to require the signer to personally appear.
The best way to protect yourself and minimize risk of Notary liability is to enforce the personal appearance requirement for every notarization. This also protects the public and the transaction.
Questions From Notaries About Remote Online Notarizations
Some Notaries have asked if they are allowed to perform remote online notarizations using online audiovisual communications technologies.
Most states have enacted permanent laws that authorize Notaries to perform remote online notarizations. With a remote notarization, the signer and Notary appear before each other using technology that allows them to simultaneously communicate with each other by sight and sound. Think of remote online notarization as a new way for signers to personally appear before a Notary. Since not all states have enacted these laws, Notaries in states that don't authorize remote notarization must still require the signer to appear physically in person before the Notary.
Bill Anderson is Vice President of Government Affairs with the National Notary Association.