Excerpt from the John Marshall Law Review:
The notary public who wishes never to be sued in civil, criminal or administrative court might adopt as a motto the title of that most celebrated of legal writs: habeas corpus.
“You have the body” would be an apt imperative for any cautious and conscientious notary intent both on deterring fraud and staying out of court. The “body,” of course, would be that of the signer of any document presented for notarization, for it is the frequent failure of notaries to ensure the signer’s physical presence before them at the time and place of the notarial act that has been a major cause of their legal problems in recent decades.
Knowing their purpose is to detect and deter fraud, most notaries are well prepared for the threat posed by impostors with false identification documents. They are on high alert when a stranger approaches, requests a notarial act and presents a driver’s license or other identification to prove identity.
However, their guard is down when it is a friend, relative, associate, client or supervisor who requests their notarial services. And when that friend, relative, associate, client or supervisor presents a document apparently signed by an absent third party, assuring the notary that the signature is genuine, that the signer is ill or unavailable, and the urgency such that immediate notarization is essential, the notary will frequently waive normal precautions and procedures as a favor to this trusted person. Too often, that trust is misplaced and the signature a forgery.
Today it is a sad and ironic reality that notaries are much more likely to be fraudulently exploited by trusted acquaintances, family members and business associates than by perfect strangers. The notary’s trust and friendship are readily discarded by the individual whose overriding priority is to gain control of joint assets in a crumbling marriage or business relationship.
Acknowledgment means a notarial act in which a notary certifies that a signer, whose identity is personally known to the notary or proven on the basis of satisfactory evidence, has admitted, in the notary’s presence, having signed a document voluntarily for its stated purpose.
Jurat means a notarial act in which a notary certifies that a signer, whose identity is personally known to the notary or proven on the basis of satisfactory evidence, has made, in the notary’s presence, a voluntary signature and taken an oath or affirmation vouching for the truthfulness of the signed document.
In short, it’s always best to have the signer present when signing the document(s) but a notary can execute an acknowledgement where the subject document(s) have already been signed if all other required steps (identification) have been followed. With a jurat, the signer must be present because the notary is taking the signer’s verbal oath at the time the document is signed.
