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In Coosa County, and throughout the state, there are people performing duties as a notary public (notary/notaries). However, many people do not understand what a notary public is, much less what a notary public is required to do prior to placing their name and seal on a document.
Being a notary is a huge responsibility, and their actions can have a significant impact on people’s lives and/or businesses. The judicial and business worlds depend greatly upon notaries to properly perform their duties with the utmost integrity.
In this article we will take a quick look at what a notary is, what a notary must do prior to notarizing a document and recent legislative changes expanding/clarifying requirements and responsibilities of a notary public.
First, a notary is an official appointed and commissioned for four-year terms by the judge of probate in the county where the notary public lives. Although the notary is commissioned in the county of residence, their jurisdiction extends throughout the state and is not limited to the county where the notary is commissioned.
A notary public is to be an impartial witness related to the signing of important documents to help prevent fraud. Their official acts are called notarizations or notarial acts. Notaries are commissioned as “ministerial” officials, meaning they are to strictly follow written rules without exercising significant personal discretion.
A notary must verify the signer’s identity; their willingness to sign without duress, intimidation, or undue influence; and their awareness of the contents of the documents or transaction. The notary is not verifying or certifying the documents being signed are legal or proper, but simply authenticating that the signatures on the document are valid signatures (or marks) of the persons who are signing the documents and the person is aware of what he/she is signing.
Many people falsely assume a notary can take their word that documents were signed by the people shown as signatories on the documents. Many people expect a notary to notarize documents then allow the person to take the documents to someone for signature.
Some people expect the notary to read and explain the documents to them and/or advise them to either sign or not sign the documents. This is not what a notary does. If the person needs this service, he/she needs to contact an attorney.
An Alabama notary, by law, is required to obtain proper government-issued identification and personally witness the signatural act of everyone for whom the notary is notarizing the document. If required, the notary must be prepared to truthfully testify in court that he/she witnessed the signatory signing the documents and that the person appeared to do so willingly. If the notary cannot do this, the notary cannot notarize the documents.
The Alabama Code of 1975, Sections 36-20-70; -71; -72; -73; -74; and -75 governing notaries public were revised during the recent regular legislative session by Act Number 2023-548. The following are some of the major items that were changed.
The first changes relate to the judges of probate responsibilities. The minimum fee the judge of probate is required to collect for the notary commission increases 15 dollars ($15). In addition, the judge of probate is now required to collect a 10-dollar ($10) application fee.
The judge of probate may accept or deny any notary public commission application if the applicant fails to meet certain requirements (in progress now) as developed by the Alabama Law Institute and the Alabama Probate Judges Association.
In addition, the judge of probate is required to deny applications if the applicant: 1) is not a resident of Alabama, 2) does not live in the county where applying, 3) has been convicted of a felony or crime of moral turpitude, 4) is currently a debtor in bankruptcy proceedings, 5) under order adjudicating incapacity, 6) provides false information on application, 7) is unable or unwilling to complete the mandatory training program (applicants who are attorneys do not have to complete the training).
Code § 36-20-71 was amended to include language that the notary’s bond must be obtained from an Alabama licensed producer of bonds. It also increases the notary’s bond from $25,000 to $50,000.
Code § 36-20-72(b) was added: “The form and content of any notarial act on an instrument to be recorded in the public records, including the court system, shall include an oath, acknowledgment, and signature of each party to the document, or his or her mark, and the signature of the notary public and their seal of office by either ink stamp or embossed impression.”
Code § 36-20-73.1(a) was amended to make it clear that all signatures the notary acknowledges must be executed in the physical presence of the notary only after the notary has positively identified the prospective signatory by examining the signatory’s government-issued photo identification.
Code § 36-20-74 was amended to allow the notary public to collect a fee of up to $10 for each notarial act performed.
Code § 36-20-75 had major modifications which allows the judge of probate to issue a warning, restriction, suspension, or revocation of the notarial commission. It also allows individuals to be charged with a Class C misdemeanor for: 1) holding oneself out as a notary without being commissioned; 2) notarizing documents with an expired, suspended, or restricted commission; 3) charging in excess of $10; 5) performing a notarial act without the principal appearing in person before the notary; and 6) not obtaining satisfactory evidence of the identity of the principal.
In addition, it is now a Class D felony for a notary to do any of the following with the intent to commit fraud: 1) to take an acknowledgment or administer an oath without the principal appearing in person before the notary; 2) to take an acknowledgment or administer an oath without following the procedures; 3) to take a verification or proof without the subscribing witness appearing in person before the notary; and 4) perform notarial acts knowing he/she is not commissioned.
This article highlights some of the changes affecting notary publics. To see the complete text of the Act, go to the secretary of state’s website and find Act Number 2023-548. Until next month, stay safe and be happy!