Notary public also as the witness on a document; An opinion piece.
Does your state notary handbook have a statute referencing the notary acting as the witness and notarizing the same document? Most states don't specifically say that you can do this, but they don't prohibit it either. Florida is the one state that I can think of that specifically says that the Notary can also be a witness on a document they are notarizing. That’s one out of 50!
That statement might mean different things to different people. Some would say that if your statutes don't prohibit it then it's OK to do it. And some say that if the “law is silent” and there's no mention of it specifically, that it's OK to proceed. Personally, I do not agree with those statements.
The fact is, our handbooks cannot possibly list everything we should not or cannot do. Our industry (Lenders, Title Agencies, Real Estate) have some really creative ideas out there and come-up with new things almost every year. Hybrid certificates are an example. So our licensing agencies (SOS) can't possibly keep up with all those entities and notaries with those harebrained ideas and reference them in our handbooks. If they did our handbook would be the size of the IRS tax code.
Simply put, our regulations are written as a pseudo ‘job description’. Here's everything you need to know about your job. And it is the opposite of public law that says…Here's what you shouldn't be doing because it could land you in jail. If you are a notary who is scouring your handbook to see if it says you cannot do something – you likely will not find that information. Sometimes we will find something referenced as prohibited, but that comes after many years of reported incidents involving Notaries Public.
If you think that this might sound familiar, it’s because I have been saying it for many years. As an educator for the Notary community, I often must address these types of questions over a broad range. If we can just stop for a moment and apply the same logic to the questions that are answered in our handbooks or state regulations to the questions that aren’t, then we would be using a fair method of evaluation. Otherwise, we are just bending the rules to meet our needs.
Example #1; “What methods of identification can I use to identify a signer?” Answer from your handbook and/or state regulations is a list of acceptable ID’s.
If you apply the logic of “when the law is silent”, then the answer changes. You might say, well it doesn’t say we can’t take this form of identification, so it must be ok. That just doesn’t make sense.
Example #2; “Can I complete a hybrid notarial certificate?” That question often isn’t shown in our handbooks or in our state regulations because it is not a product of the notary industry. It is born from the Lender and Title Agency sector. Some very progressive states might show the answer in notary handbooks, but many do not. We cannot just assume that it is okay to do so because the “law is silent”. We need to make that inquiry directly to our licensing agency – after thoroughly explaining to them what a Hybrid certificate is.
Back on the topic of the notary also as the witness on a document, if you think about the reason for requiring 2 witnesses (or even 1-witness) and a notary on a document you will realize that it is probably a very powerful document that could be life-changing for someone. Those types of documents are usually conveyance deeds or a Power of Attorney. It is important to have independent parties verify that the principal did indeed sign the document and did so of his/her own free will. The notary is there to also verify all of the parties signed the document and the certificate was completed contemporaneously with the act. If you, as the notary also act as one of the witnesses, you are effectively watering down the reason for the witness in the first place. In fact, if you look at a POA in a Living Will, they specifically limit who can be a witness on those types of documents and the notary can never be one of the witnesses. So it makes you wonder why the same best practice is not applied to other documents.
The National Notary Association (David Thun, Attorney) has stated as a best practice that it's never a good idea for the notary to be the witness on a document that you are also notarizing. And of course, you could not act in that capacity if the signatures of the witnesses are to be notarized. as you cannot notarize your own signature. However, if you call the NNA they will tell you that they don't find the statute in your handbook so it must be OK.
My opinion is to apply the same logic to the questions you can’t find answers to as the logic you use when you do find the answers in your handbook or in state regulations.
Article written by Beth Hathoot for NotaryStars.com 10/2023
