What is a Notary?
A notary is a lawyer or person with legal training who is licensed by the state to perform acts in legal affairs, in particular witnessing signatures on documents. The form that the notarial profession takes varies with local legal systems.
Most common law systems have what is called in the United States a notary public, a public official who notarizes legal documents and who can also administer and take oaths and affirmations, among other tasks. In the United States, a Signing agent, also known as a Loan Signing Agent, is a Notary Public who specializes in notarizing mortgage/real estate documents. Although notaries public are public officials, they are not paid by the government; they may obtain income by charging fees, provide free services in connection with other employment (for example, bank employees), or may provide free services for the public good.
Most Roman law-based systems have the civil law notary, a legal professional working in civil law performing similar functions, but often rather more extensive. The Worshipful Company of Scriveners use an old English term for a notary, and are an association of notaries practicing in central London since 1373.
To “notarize” a document or event is not a term of art, and its definition varies from place to place; but it generally means the performance by a notary of a series of possible steps, which may include the following (not an exhaustive list):
- Identifying the person appearing before the notary by reference to significant proofs of evidence including passport, driving licence, birth certificate, diplomatic documents etc. The notary may have to exercise considerable ingenuity in some cases, such as in the case of holocaust victims who lack formal documentation orillegal immigrants
- Where land titles are involved or significant rights may accrue by reference to the identity, signatures may also be verified, recorded and compared
- Recording the proof of identity in the notarial register or protocol
- Satisfying the notary that the person appearing is of full age and capacity to do whatever is intended
- Taking an affidavit or declaration and recording that fact
- Taking detailed instructions for a protest of a bill of exchange or a ship’s protest and preparing it
- Recording the signature of the person in the register or protocol
- Taking an acknowledgment (in the United States) of execution of a document and preparing a certificate of acknowledgement
- Preparing a notarial certificate (in most other jurisdictions) as to the execution or other step
- Sealing or stamping and signing the document
- Recording all steps in the register or protocol
- Delivering the completed original to the person appearing
- In some cases, retaining a copy of the document in the register or protocol
- Charging the person appearing a fee for the service
Often, in the case of lawyer notaries, the certificate to be provided will not require the person appearing to sign. Examples are: certificates authenticating copies – which are mostly not within the permissible functions of U.S. notaries, and certificates as to law, such as certificates as to the capacity of a company to perform certain acts, or explaining probate law in the place.
However, in Roman Law states or provinces, notaries or “title attorneys”, provide many of the same services as a lawyer (negotiation and drafting of contracts, legal advice, settlement of estates, creation of a company and its status, writing of wills and power of attorney, interpretation of the law, mediation, etc…) except any involvement in disputes to be presented before a court. Notaries are specialized in all matters relating to real estate, for example, completing title exams in order to confirm the ownership of the property, the existence of any charges such as “land servitudes” or mortgages.