Notary public


A notary public of the common law is a public officer constituted by law to serve the public in non-contentious matters usually concerned with general financial transactions, estates, deeds, powers-of-attorney, and foreign and international business. A notary's main functions are to validate the signature of a person ; administer oaths and affirmations; take affidavits and statutory declarations, including from witnesses; authenticate the execution of certain classes of documents; take acknowledgments ; provide notice of foreign drafts; provide exemplifications and notarial copies; and, to perform certain other official acts depending on the jurisdiction. Such transactions are known as notarial acts, or more commonly, notarizations. The term notary public only refers to common-law notaries and should not be confused with civil-law notaries.
With the exceptions of Louisiana, Puerto Rico, Quebec, and British Columbia, a notary public in the rest of the United States and most of Canada has powers that are far more limited than those of civil-law or other common-law notaries, both of whom are qualified lawyers admitted to the bar: such notaries may be referred to as notaries-at-law or lawyer notaries. Therefore, at common law, notarial service is distinctly different from the practice of law, and giving legal advice and preparing legal instruments is forbidden to lay notaries such as those appointed throughout most of the United States. Despite these distinctions, lawyers in the United States may apply to become notaries, and this class of notary is allowed to provide legal advice, such as determining the type of act required.

Overview

Notaries are appointed by a government authority, such as a court, governor, county commissioners, or lieutenant governor, or by a regulating body often known as a society or faculty of notaries public. For lawyer notaries, an appointment may be for life, while lay notaries are usually commissioned for a briefer term, with the possibility of renewal.
In most common law countries, appointments and their number for a given notarial district are highly regulated. However, since the majority of American notaries are lay persons who provide officially required services, commission numbers are not regulated, which is part of the reason why there are far more notaries in the United States than in other countries. Furthermore, all U.S. and some Canadian notarial functions are applied to domestic affairs and documents, where fully systematized attestations of signatures and acknowledgment of deeds are a universal requirement for document authentication. In the U.S., notaries public do not authenticate documents in a traditional sense: instead, they authenticate that the signature on a document belongs to the person claiming to be the signer, thus ensuring trust among interested parties. By contrast, outside North American common law jurisdictions, notarial practice is restricted to international legal matters or where a foreign jurisdiction is involved, and almost all notaries are also qualified lawyers.
For the purposes of authentication, most countries require commercial or personal documents which originate from or are signed in another country to be notarized before they can be used or officially recorded or before they can have any legal effect. To these documents a notary affixes a notarial certificate–a separate document stating the notarial act performed and upon which the party and notary sign–which attests to the execution of the document, usually by the person who appears before the notary, known as an appearer or constituent. In the U.S., many documents include the notarial wording within the document, thus eliminating the need for an additional page for the certificate only. In cases where notaries are also lawyers, such a notary may also draft legal instruments known as notarial acts or deeds which have probative value and executory force, as they do in civil law jurisdictions. Originals or secondary originals are then filed and stored in the notary's archives, or protocol. As noted, lay notaries public in the U.S. are forbidden to advise signers as to which type of act suits the signer's situation: instead, the signer must provide the certificate/wording that is appropriate.
Notaries are generally required to undergo special training in the performance of their duties, often culminating in an examination and ongoing education/re-examination upon commission renewal. Some states have no training for their notaries public. Some must also first serve as an apprentice before being commissioned or licensed to practice their profession. In some countries, even licensed lawyers, e.g., barristers or solicitors, must follow a prescribed specialized course of study and be mentored for two years before being allowed to practice as a notary. However, notaries public in the U.S., of which the vast majority are lay people, require only a brief training seminar and are expressly forbidden to engage in any activities that could be construed as the unlicensed practice of law unless they are also qualified attorneys. That said, even lay notaries public must know all applicable laws in their jurisdiction to practice, and a commission could be revoked for a single deviation from such laws. Notarial practice is universally considered to be distinct and separate from that of an attorney. In England and Wales, there is a course of study for notaries which is conducted under the auspices of the University of Cambridge and the Society of Notaries of England and Wales. In the State of Victoria, Australia, applicants for appointment must first complete a Graduate Diploma of Notarial Practice which is administered by the Sir Zelman Cowen Centre in Victoria University, Melbourne. The United States is a notable exception to these practices: lawyer-notaries need only be approved by their jurisdiction and possibly by a local court or bar association.
In bi-juridical jurisdictions, such as South Africa or Louisiana, the office of notary public is a legal profession with educational requirements similar to those for attorneys. Many even have institutes of higher learning that offer degrees in notarial law. Therefore, despite their name, "notaries public" in these jurisdictions are in effect civil law notaries.

History

Notaries public hold an office that can trace its origins back to the ancient Roman Republic, when they were called scribae, tabelliones forenses, or personae publicae.
The history of notaries is set out in detail in Chapter 1 of Brooke's Notary :

Common law jurisdictions

The duties and functions of notaries public are described in Brooke's Notary on page 19 in these terms:
A notary, in almost all common law jurisdictions other than most of North America, is a practitioner trained in the drafting and execution of legal documents. Historically, notaries recorded matters of judicial importance in addition to private transactions or events where an officially authenticated record or a document drawn up with professional skill or knowledge was required. The functions of notaries specifically include the preparation of certain types of documents and certification of their due execution, administering of oaths, witnessing affidavits and statutory declarations, certification of copy documents, noting and protesting of bills of exchange, and the preparation of ships' protests.
Documents certified by notaries are sealed with the notary's seal and are often, as a matter of best practice or else jurisdictional law, recorded by the notary in a register maintained and permanently kept by him or her. The use of a seal by definition means a "notarial act" was performed.
In countries subscribing to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents or Apostille Convention, additional steps are required for use of documents across international borders. Some documents must be notarized locally and then sealed by the regulating authority –sometimes, documents may skip directly to this level–and then a final act of certification is required, known as an apostille. The apostille is issued by a government department. For countries which are not subscribers to that convention, an "authentication" or "legalization" must be provided by one of a number of methods, including by the Foreign Affairs Ministry of the country from which the document is being sent or the embassy, Consulate-General, consulate or High Commission of the country to which it is being sent.

Information on individual countries and territories

Australia

In all Australian states and territories notaries public are appointed by the Supreme Court of the relevant state or territory. Very few have been appointed as a notary for more than one state or territory.
Queensland, like New Zealand, continues the practice of appointment by the Archbishop of Canterbury acting through the Master of the Faculties.
Australian notaries are lawyers and are members of the Australian and New Zealand College of Notaries, the Society of Notaries of New South Wales Inc., the Public Notaries Society of Western Australia Inc, and other state-based societies. The overall number of lawyers who choose to become a notary is relatively low. For example, in South Australia, of the over 2,500 lawyers in that state only about 100 are also notaries and most of those do not actively practice as such. In Melbourne, Victoria, in 2002 there were only 66 notaries for a city with a population of 3.5 million and only 90 for the entire state. In Western Australia, there are approximately 58 notaries as at 2017 for a city with a population of 2.07 million people. Compare this with the United States where it has been estimated that there are nearly 5 million notaries for a nation with a population of 296 million.
As Justice Debelle of the Supreme Court of South Australia said in the case of In The Matter of an Application by Marilyn Reys Bos to be a Public Notary SASC 320, delivered 12 September 2003, in refusing the application by a non-lawyer for appointment as a notary:
Historically there have been some very rare examples of patent attorneys or accountants being appointed, but that now seems to have ceased.
However, there are three significant differences between notaries and other lawyers.
  • the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties to a transaction as long as there is no conflict between them, and in such cases it is their duty is to ensure that the transaction that they conclude is fair to both sides.
  • a notary will often need to place and complete a special clause onto or attach a special page to a document in order to make it valid for use overseas.
    In the case of some documents which are to be used in some foreign countries it may also be necessary to obtain another certificate known either as an "authentication" or an "apostille" from the Department of Foreign Affairs and Trade.
  • a notary identifies themselves on documents by the use of their individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the authenticity of a document.
Their principal duties include:
  1. attestation of documents and certification of their due execution for use internationally
  2. preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use internationally
  3. administering of oaths for use internationally
  4. witnessing affidavits, statutory declarations and other documents for use internationally
  5. certification of copy documents for use internationally
  6. exemplification of official documents for use internationally
  7. noting and protesting of bills of exchange
  8. preparation of ships' protests
  9. providing certificates as to Australian law and legal practice for use internationally
It is usual for Australian notaries to use an embossed seal with a red wafer, and now some notaries also use an inked stamp replicating the seal. It is also common for the seal or stamp to include the notary's chosen logo or symbol.
In South Australia and Scotland, it is acceptable for a notary to use the letters "NP" after their name. Thus a South Australian notary may have "John Smith LLB NP" or similar on his business card or letterhead.
Australian notaries do not hold "commissions" which can expire. Generally, once appointed they are authorized to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. In certain states, for example, New South Wales and Victoria, they cease to be qualified to continue as a notary once they cease to hold a practicing certificate as a legal practitioner. Even judges, who do not hold practicing certificates, are not eligible to continue to practice as notaries.
Notaries in some states of Australia are regulated by legislation. In New South Wales the Public Notaries Act 1997 applies and in Victoria the Public Notaries Act 2001 applies.
There are also Notary Societies throughout Australia and the societies keep a searchable list of their members. In New South Wales, The Society of Notaries of New South Wales Inc.; in Queensland The Society of Notaries Queensland Inc.; in South Australia the Notaries' Society of South Australia Inc. and in Victoria, The Society of Notaries of Victoria Inc..
Notaries collecting information for the purposes of verification of the signature of the deponent might retain the details of documents which identify the deponent, and this information is subject to the Privacy Act 1988. A notary must protect the personal information the notary holds from misuse and loss and from unauthorised access, modification or disclosure.
All Australian jurisdictions also have justices of the peace or commissioners for affidavits and other unqualified persons who are qualified to take affidavits or statutory declarations and to certify documents. However they can only do so if the relevant affidavit, statutory declaration or copy document is to be used only in Australia and not in a foreign country, with the possible exception of a few Commonwealth countries not including the United Kingdom or New Zealand except for very limited purposes. Justices of the peace are laypersons who have minimal, if any, training but are of proven good character. Therefore, a US notary resembles an Australian JP rather than an Australian notary.