Chapter 7: New Law Changes Notary Certificate Wording

CA Senate Bill 1050 was signed into law and effective January 1, 2015.   The wording for CA Certificate of Acknowledgment, Jurat and Proof of Execution will change.   Why is this important? Any document notarized in CA after Midnight December 31, 2014 must have the new wording or the document will be rejected by CA County Clerk and Recorder’s offices.  The responsibility to use the new Acknowledgment, Jurat and Proof of Execution certificates is on the Notary Public.

Beware of:

  • Online websites selling legal documents based outside of CA
  • Attorneys using outdated software programs (especially Estate Planning Attorneys that generate Living Trusts)
  • Title Companies and Real Estate Agents using outdated software programs to generate Buyers and Sellers documents
  • Financial Institutions (banks generate loan documents and Durable Power of Attorney documents with outdated software programs)
  • Government Agencies using outdated forms and the notarial set-up is printed on their documents (especially old preprinted Federal forms)
  • CA DMV forms (make sure you’re using the most current forms and not old forms)

If you’re a Notary Public in CA go to the National Notary Association website and download the new Acknowledgment, Jurat and Proof of Execution certificates before Midnight December 31, 2014.  Be prepared with the new documents and not sorry when you notarize a document improperly on January 1, 2015.

So what’s the new wording?  An enclosed box above the venue or location where the document was signed and notarized which states the following:


A notary public or other officer completing this

certificate verifies only the identity of the 

individual who signed the document to which this

certificate is attached, and not the truthfulness,

accuracy, or validity of that document.


Why was this law created?  The role of the Notary Public: “A notary public is required to certify to the identity of the signer of the document.” (Civil Code sections 1185(a), 1189, Government Code section 8202) “Identity is established if the notary public is presented with satisfactory evidence of the signers identity. (Civil Code section 1185(a))  Proper identification was covered in a previous chapter. The notary public is witnessing the signing of the document and not the truthfulness of what’s contained in the document.  With this new law in place the notary public cannot be held responsible for the contents of any document being notarized.

Chapter 6: Confidential Marriage Licenses Only in California

Remember the terminology “living in sin?” Confidential Marriage Licenses date back to 1878 but only the 1970’s in California (the only state that offers Confidential Marriage Licenses).

http://www.utsandiego.com/news/2013/Jun/21/marriage-secret-law/

Most counties in the State of California have appointed Authorized Notaries.   If couples seeking a marriage license knew how convenient it is to obtain a Confidential Marriage License the need for more Authorized Notaries would be greater.  When the County Recorder’s Office is closed you can still obtain a Confidential Marriage License from an Authorized Notary Public.  Criteria for an Authorized Notary includes being authorized by the County Clerk and the ability to perform the marriage.  He or she must be authorized under Family Code sections 400 to 402 (e.g. priest, minister, or rabbi).  Example:  I am a Notary Public and I can perform a wedding ceremony because I am an ordained Non-Denominational Minister.  I cannot issue a Confidential Marriage License.   So before you go on Yelp.com or YP.com looking for any Notary Public to issue a marriage license remember only an Authorized Notary Public can issue a Confidential Marriage License.

Benefits of a Confidential Marriage License versus a Non-Confidential Marriage License:

1. Cost

The cost of a Confidential Marriage License varies by county.  In San Diego County the fee is $89.  The fee for a Non-Confidential Marriage License is $70.   When your marriage license is issued an application for a marriage certificate will be included inside your packet. The application must be signed by either partner and notarized if you’re not going in person to the County Clerk’s office to request your marriage certificate.  Certified Copies are required for federal and state government purposes, such as the DMV, Social Security, immigration issues, military proof and name change after marriage.  The County Recorder Clerk’s office will mail your marriage certificate.  The cost is $15 per marriage certificate and the standard notary fee of $15 per signature notarized.

2.  Convenience

The best reason to obtain a Confidential Marriage License from an Authorized Notary Public is convenience.  An Authorized Notary Public can issue a Confidential Marriage License when the County Recorders Office is closed and when one or both parties are unable to personally appear at the County Clerks Office to apply for a marriage license.  Examples include individuals unable to travel to the County Clerk’s office such as in the hospital or in custody.

3.  Protection

A Confidential Marriage License keeps all the personal information on a marriage license protected from public view eliminating Identity Theft and revealing to the public your marriage.  Especially same-sex couples that may or may not be “out” at work or with their families.  Only a court order or notarized application by either spouses can obtain a copy of the information.  This benefits anyone who wishes to keep their information private including celebrities.

4.  Limitations

The only limitations of a Confidential Marriage License is the license is only valid if your marriage ceremony takes place in the county where the Confidential Marriage License was issued.   So if you obtain your Confidential Marriage License in San Diego County the marriage ceremony must take place in San Diego County within 90 days of the license issued.  The only way to get a copy of your marriage certificate is by a court order or notarized application by either spouses to obtain a copy of your marriage certificate.

5.  Requirements for a Confidential Marriage License

  • Must be over 18 years old
  • Must have proper identification (same requirements for notarizing any document)
  • Must have been living together as spouses (no time requirement)
  • Must be free to marry

Definition of “free to marry” is that you cannot be legally married or legally have a Domestic Partnership with another individual filed.  You must be divorced.  If the divorce was finalized less than 90 days an original court document as proof is necessary before a marriage license can be issued.  Over 90 days it’s not necessary.  Copies of your Birth Certificates are recommended to make sure the spelling of every word is correct on your marriage license.  A single misspelled word will be a costly mistake.  Save yourself the extra money, time and frustration by having copies of your Birth Certificates available when you meet with your Authorized Notary Public or at the County Recorder’s Office when you complete your application for a marriage license.

6.  Are Confidential Marriage Licenses Legal?

Confidential Marriage Licenses are legal and can be issued by the County Recorder Clerks Office and by an Authorized Notary Public.  California is the ONLY state that offers Confidential Marriage Licenses.   A Confidential Marriage License can be issued to couples as long as they meet the requirements in #5.  U.S. Citizenship and Residency are not requirements for a Confidential Marriage License.

 

 

If you’re interested in an LGBT Wedding Officiant / Notary Public call (619) 708-0897.

 

Wedding Officiant Photo

Chapter 5: How Can I Get Something Notarized Without Proper ID?

Did you know when you’re arrested in California for a DUI the arresting officer takes your Driver’s License and returns it to the DMV?  That’s right.  Even though you’re innocent until proven guilty in a court of law your Driver’s License is taken away.   In exchange you will find a pink piece of paper in your property bag at the jail which is your Temporary Driver’s License for the next 30 days.   Can you use this Temporary License as your ID to get a document notarized?  NO.  See Chapter 2: Proper ID for Notarizing a Document in California.   Did you know you can get a California ID in addition to your Driver’s License thru the California DMV?   The number is the same as your Driver’s License but cannot be used as a Driver’s License.  For the purposes of identification for a notary, cashing a check or even at the airport the state issued ID can be your savior.   The next form of acceptable identification for the purposes of a notary is a Passport.   If you don’t have a Passport prior to losing your Driver’s License the hurdle to climb gets even bigger.  You need proper identification to apply for a Passport.   Getting a DUI is a HUGE nightmare if you don’t have a Passport or California ID.  Fortunately there’s a light at the end of the tunnel if you need something notarized and you don’t have proper ID.  Again, the Secretary of State has made provisions for every scenario when a document has to be notarized.

The Credible Witness or Credible Witnesses are your only saving grace when you don’t have proper identification in California.  So what’s a Credible Witness?   From the California Notary Public Handbook:

“The identity of the signer can be established by the oath of a single credible witness whom the notary public personally knows.  (Civil Code section 1185(b)(1)).  The notary public must establish the identity of the credible witness by the presentation of paper identification documents. (see Chapter 2)  Under oath, the credible witness must swear or affirm that each of the following is true (Civil Code section 1185(b)(1)(A)(i)-(v):

  1. The individual appearing before the notary public as the signer of the document is the person named in the document;
  2. The credible witness personally knows the signer;
  3. The credible witness reasonably believes that the circumstances of the signer are such that it would be very difficult or impossible for the signer to obtain another form of identification;
  4. The signer does not possess any of the identification documents authorized by law to establish the signer’s identity;
  5. The credible witness does not have a financial interest and is not named in the document signed.”

What happens if you don’t know anyone that can act as a Credible Witness that personally knows a Notary Public?   No worries.  The Secretary of State has built-in a way to get this notary completed by allowing for TWO Credible Witnesses.    The identity of the signer is established by the oaths of two people who can act as Credible Witnesses.   The Credible Witnesses must show their proper identification (Driver’s License, Passport, government issued ID, same as the identification required for notarizing a document) and under oath they must swear under penalty of perjury the same 5 things stated above.  A Credible Witness is someone who you’ve known long enough that can swear to your identity.   The Credible Witnesses will sign the Notary Public Journal which establishes the identification used for a signer of a document notarized.

The lesson in this chapter is that you can get any document notarized if you have proper identification or credible witnesses to establish your identity.   As far as taking a commercial flight or cashing a check without your Driver’s License?   I can’t help you.   I strongly suggest that everyone reading this chapter go online to http://dmv.ca.gov/dl/dl_info.htm#idcard    To apply for an ID you will need to do the following:

  1. Visit a DMV office  (go online and make an appointment)
  2. Complete an original DL 44 form
  3. Give a thumb print
  4. Have your picture taken
  5. Provide your Social Security number
  6. Verify your date of birth
  7. Pay the application fee  (No fee for senior citizens)
  8. Make sure the address is correct on the application because your ID will be mailed to this address in 60 days

If your wallet is stolen, you misplace your Driver’s License or you’re arrested for a DUI in California,  a California ID will be your saving grace the next time you need to travel, cash a check or have a document notarizied.

Chapter 4: Signature by Mark

What happens when someone is injured in an accident or suffered a stroke and they cannot sign their name on a document that needs to be notarized?   The Secretary of State has made provisions for every possible scenario so a Notary Public can perform their duties notarizing documents.   (Civil Code section 14) “When the signer of an instrument cannot write (sign) his or her name, that person may sign the document by mark.”    Translation: The signer must be able to make a mark where their signature would be if they were able to sign their name.

Example of a mark: X

Here’s the list of requirements for a “Signature by Mark:”

  • The person signing the document with a mark must be identified by the Notary Public.  See Chapter 2 (Proper ID for Notarizing a Document in California)
  • The signer’s mark must be witnessed by two people who must sign their own names as witnesses on the document.
  • Witness #1 will write the person’s name next to the mark and then sign their own name as a witness.
  • Witness #2 will sign their name next to Witness #1

Do the witnesses need to identify themselves with proper ID like the signer of the document?   No.  Can the staff at the hospital act as witnesses?  No.  Most medical facilities forbid their employees from signing any legal documents for patients.   If you know your loved one cannot sign their name make sure you have 2 witnesses present before the notary arrives.   A notary public cannot act as a witness to a document if they’re notarizing the document.

Witness #1 is required to write the name of the signer next to the mark in the Notary Journal and then sign their name as Witness #1 in the journal.   Performing a Signature by Mark notary can be time-consuming for everyone involved because the documents have to be altered for the witnesses to sign the document.   This is why I always carry a ruler in my briefcase.   Drawing a straight line with a ruler keeps the document neat and legible.

How often are documents notarized with a Signature by Mark?   Not very often for most notaries that work in postal type stores.    As a mobile notary public for the past 13 years I can safely state I’ve performed dozens of Signature by Mark notaries.  Each time my services are requested to complete a Signature by Mark notary I always refer back to the Notary Public Handbook issued by the Secretary of State.    The notary laws change every year in California and it’s the responsibility of the notary to make sure documents are notarized properly.   If you can’t remember how to perform a notary properly check the Notary Public Handbook before completing the notary.   When a patient in the hospital needs an Advance Health Care Directive or any important legal document notarized, making a mistake isn’t an option.   There might not be a second chance to get this document or any documents notarized again.

Chapter 3: Notary Fees

Every call I receive for a notary the same question comes up in the first few seconds.  “How much do you charge to notarize a document?”  The answer is actually the law in California. Government Code section 8211 specifies the maximum fees that a notary public can charge.  So without further adieu here’s the Fee Schedule:

  • For taking an acknowledgement or proof of a deed, or other instrument, to include the seal and the writing of the certificate, the sum of fifteen dollars ($15) for each signature taken.
  • For administering an oath or affirmation to one person and executing the jurat, including the seal, the sum of fifteen dollars ($15).
  • For services rendered in connection with the taking of any deposition, the sum of twenty dollars ($20), and in addition thereto, the sum of five dollars ($5) for administering the oath to the witness and the sum of five dollars ($5) for the certificate to the deposition.
  • NO FEE may be charged to notarize signatures on vote by mail ballot identification envelopes or other voting materials.
  • For certifying a copy of a power of attorney under Section 4307 of the Probate Code the sum of fifteen dollars ($15).
  • In accordance with Section 6107, no fee may be charged to a United States military veteran for notarization of an application or a claim for a pension, allotment, allowance, compensation, insurance, or any other veteran’s benefit.

In addition to the fee charged for the notarization of the document a notary may charge a reasonable travel fee when the notary must travel to the document signer. A Notary has the discretion to charge more for their “travel expense” if the notary is after business hours, weekends or holidays.  However, the charge for the actual notarization of the document is not discretionary. If a notary quotes a fee in excess of $15 per signature make sure the additional fee is for the travel and not the actual notary. What happens if you believe you were overcharged for a notarization of a document?   You have recourse.   The Secretary of State provides all commissioned notaries in the State of California with a handbook which has all the laws we must follow including the fee schedule.  If a notary breaks the law by charging more than $15 per signature a complaint can be filed with the Secretary of State.  Disciplinary action will be taken against a notary that breaks the law by overcharging for a notary fee.

http://www.sos.ca.gov/business/notary/file-a-complaint.htm

http://www.sos.ca.gov/business/notary/forms/complaint-form.pdf

What will happen to the Notary Public for overcharging for notary fees?  The fine is $750 and the commission can be Suspended or Revoked depending on the outcome of the investigation by the Secretary of State.

What about loan documents for the sale or purchase of a home?  During the mortgage boom a specialized notary title was created called a Notary Signing Agent.  I completed the class where we were taught about all the documents we would encounter during a loan document signing.   In addition to Notary Signing Agent I completed a course to become an Independent Loan Closer.  When it comes to how much is charged for a set of loan documents a flat rate system was created to avoid excessively high fees for the signing and notarization as well as the amount of time involved, 1-3 hours when signing loan documents.  Many Signing Agents charge a flat rate in the range of $125 to $300 which includes the travel fee. When you need a set of loan documents notarized I recommend finding a Notary Signing Agent that’s willing to meet you somewhere you can sit in a quiet environment.  Taking your set of loan documents to a local postal store can turn into a headache.  The environment in most cases isn’t private and not very quiet.  You’ll need to be sitting down since there’s so many documents that need to be signed, initialed and notarized.  All it takes is ONE error and the sale of a home or refinance of your mortgage could be in jeopardy.  The notarized documents cannot be recorded if there’s any mistakes.   If you need a set of loan documents notarized take the extra time and find a Notary Signing Agent.  You won’t be sorry.  Speak to the actual notary you’ll be working with rather than calling a 3rd party service that calls any notary with or without the proper training.   Ask the notary how many loan signings they’ve completed.  If you asked me that question I’d tell you over 1,000 since 2003.  The next time you have a document that needs to be notarized ask the notary what they charge and make sure the fee for the signatures does not exceed the law in California.

Chapter 2: Proper ID for Notarizing a Document in California

One of the first questions I ask someone requesting a document to be notarized is “do you have a proper ID?”  In California the signer must identify themselves by using “Satisfactory Evidence.”  Paper identification documents can be any of the following:

  1. Driver’s License or ID card issued by the California DMV
  2. Other California-approved ID card consisting of any one of the following, provided that it also contains a photograph, description of the person, signature of the person and an identifying number,
  3. A United States Passport
  4. A Passport issued by a foreign government, provided that it has been stamped by the U.S. Immigration and Naturalization Service (INS) or the U.S. Citizenship and Immigration Services,
  5. Driver’s License issued by another state or by a Canadian or Mexican public agency authorized to issue driver’s licenses,
  6. An ID card issued by another state,
  7. U.S. Military ID card with the required photograph, description of the person, signature of the person and identifying number.
  8. An inmate ID card issued by the CA Dept of Corrections and Rehabilitation, if the inmate is in custody,
  9. An employee ID card issued by an agency or office of the State of California or an agency or office of a city, county, or city and county in California.

What if the signer has a driver’s license but it expired?   A notary in California can accept an expired Driver’s License as long as it was issued less than 5 years ago.   What happens if the signer doesn’t have any of the acceptable forms of ID listed above?  The Secretary of State always has the answer to solve every problem when it comes to notarizing a document in California.  The signers identity can be established by Credible Witnesses.   Based on Civil Code section 1185(b)(1), a Credible Witness that knows the notary public and the signer can swear under oath the identity of the signer.   If you don’t have a Credible Witness that knows a Notary Public you can still get this document notarized with TWO Credible Witnesses that can swear under oath and penalty of perjury the identity of the signer.   Once the identity of the signer has been established the notary can perform their duties notarizing the document.

The key is to avoid being in this position of struggling to get a document notarized because you don’t have the proper identification.

  • If your driver’s license is about to expire get it renewed ASAP.  The California DMV will not forward mail. If your address changed since your last renewal of your license and you failed to notify the DMV don’t expect a renewal notice.   Go to the DMV website:      http://www.dmv.ca.gov/online/onlinesvcs.htm
  • Get a California Identification Card.  Why?  If you ever lose your driver’s license a California ID may be your only hope for getting a document notarized, getting on an airplane, completing an application for a passport and what if you get arrested for a DUI?  The arresting officer takes your driver’s license in California.   I can go on and on why having a California ID is a lifesaver when you need a government issued ID.
  • Keep names and phone numbers handy of friends that can be “Credible Witnesses” should you ever lose your driver’s license, passport or other document acceptable for establishing your identity for a notary public.

Chapter 1: Advance Health Care Directive

The Advance Health Care Directive is a document I frequently notarize for people about to have a surgical procedure or arrive at the emergency room due to an accident or sudden illness.   Most people never think they’ll need an Advance Health Care Directive until the day it becomes necessary.   Why wait until the day the nurse walks into your hospital room with all the important documents to sign and you realize you can’t complete an Advance Health Care Directive without 2 qualified witnesses or a Notary Public?  Why not complete this form now and give it to your Agent  for safe keeping?   Let’s start at the beginning.    What is an Advance Health Care Directive Form?   Click on the link below and the 5 page California Advance Health Care Directive Form will come up on a PDF-fillable form.  You can type in the information directly on your computer and print out the document.   Read the form carefully and take time to express your wishes.    Do not sign or date the document until you’re in front of a Notary Public or 2 qualified witnesses.

Qualified Witnesses cannot be any of the following:

Cannot be a person appointed as agent by this advance directive,  not the individual’s health care provider, not an employee of the individual’s health care provider, not an operator of a community care facility, not an employee of an operator of a  community care facility, not an operator of a residential care facility for the elderly, and not an employee of an operator of a residential care facility for the elderly.

At least one of the witnesses must also sign the following declaration:

“I further declare under penalty of perjury under the laws of California that I am not related to the individual executing this advance health care directive by blood, marriage, or adoption, and to the best of my knowledge, I am not entitled to any part of the individual’s estate upon his or her death under a will now existing or by operation of law.”

Finding witnesses that meet the required qualifications once you’re a patient in a hospital is next to impossible.   The staff cannot act as witnesses on any documents needing to be notarized.   Asking a family member visiting another patient can be extremely uncomfortable.    The easiest way to get this document signed and avoid the challenge of finding witnesses at any time of day or night is call A Mobile Notary Public (if you’re in San Diego).   http://www.amobilenotarypublic.com      Check online or in the phone book for a mobile notary if you need this document notarized at a medical facility outside of San Diego, California.

California Probate Code Section 4701:

http://ag.ca.gov/consumers/pdf/ProbateCodeAdvancedHealthCareDirectiveForm-fillable.pdf

You have the right to give instructions about your own health care.  You also have the right to name someone else to make health care decisions for you.  This form lets you do either or both of these things.  It also lets you express your wishes regarding donation of organs and designation of your primary physician.  If you use this form, you may complete or modify all or any part of it.  You are free to use a different form.

Part 1 of this form is a power of attorney for health care.  Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable.   You may also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you.  (Your agent may not be an operator or employee of a community care facility or a residential care facility where you are receiving care, or your supervising health care provider or employee of the health care institution where you are receiving care, unless your agent is related to you or is a coworker.)

Unless the form you sign limits the authority of your agent, your agent may make all health care decisions for you.  This form has a place for you to limit the authority of your agent.  You need not limit the authority of your agent if you wish to rely on your agent for all health care decisions that may have to be made.  If you choose not to limit the authority of your agent, your agent will have the right to:

(a) Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition.

(b) Select or discharge health care providers and institutions.

(c) Approve or disapprove diagnostic tests, surgical procedures, and programs of medication.

(d) Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation.

(e) Make anatomical gifts, authorize an autopsy and direct disposition of remains.

Part 2 of this form lets you give specific instructions about any aspect of your health care, whether or not you appoint an agent.  Choices are provided for you to express your wishes regarding the provision, withholding, or withdrawal of treatment to keep you alive, as well as the provision of pain relief.  Space is also provided for you to add the choices you have made or for you to write out any additional wishes.  If you are satisfied to allow your agent to determine what is best for you in making end-of-life decisions, you need not fill out Part 2 of this form.

Part 3 of this form lets you express an intention to donate your bodily organs and tissues following your death.

Part 4 of this form lets you designate a physician to have primary responsibility for your health care.  After completing this form, sign and date the form at the end.  The form must be signed by two qualified witnesses or acknowledged before a notary public.  Give a copy of the signed and completed form to your physician, to any other health care providers you may have, to any health care institution at which you are receiving care, and to any health care agents you have named.  You should talk to  the person you have named as agent to make sure that he or she understands your wishes and is willing to take the responsibility.

You have the right to revoke this advance health care directive or replace this form at any time. 

Fill out this Advance Health Care Directive Form now and get it witnessed or notarized.   Why wait until the day you really need this form?    Do it now.   You’ll thank me later.