Overview for Notaries
A PUBLIC OFFICIAL
A notary is a public official commissioned by the Secretary of State through the power vested in the Secretary by state law. It is very important for notaries to remember the public nature of the office they hold. When performing a notarial act, a notary is not acting on behalf of him/herself or his/her employer, but rather, on behalf of the state of Montana. It is the duty of all notaries to serve the public, and they may not unreasonably refuse to perform a notarial act for any member of the public who tenders the statutory fee and meets all requirements prescribed by statute. It is equally important that notaries take precautions not to exceed the power of this office.
A NOTARY’S FUNCTION
A notary acts as an official, unbiased witness to the identity and signature of the person who comes before the notary for a specific purpose. The person may be taking an oath, giving oral or written testimony, or signing or acknowledging a signature on a legal document. In each instance the notary attests that certain formalities have been observed. Montana law defines certain “Notarial Powers” that a notary may perform. Notaries must constantly be aware that every notarial act affects the legal rights of others. Carelessness or negligence by the notary may injure these rights. Upon conviction of a violation of these rights, the notary may be punished as provided by law.
Integrity and skill are required of notaries in the discharge of their duties, for the mere mechanical performance of their office does not insure the added degree of authenticity that is the hallmark of the notarial act. Simply affixing your seal and signing your name does not constitute a proper notarization in the state of Montana. Such indifference to the required details can open the notary to legal liabilities. As you go through this handbook, pay very close attention to the exact requirements for various notarial acts. A notary will be held personally responsible for improper, negligent, or fraudulent actions.
A NOTARY’S GREATEST RESPONSIBILITY
If the notary’s primary function is to be a witness to the identity of a person who is signing a document, taking an oath, or acknowledging a signature, it automatically follows that the notary’s greatest responsibility is to be able to unequivocally testify that they did in fact witness the act they claimed to have notarized. In other words, the person whose signature, oath, or acknowledgment is being notarized MUST appear in front of the notary at the time the act takes place. Always. Every time. No exceptions. Failure to conclusively establish the identity of the person requesting a notarization places the notary at risk of being sued for negligence or malfeasance in office.
The only safe practice is to refuse to notarize any signature, oath, or acknowledgment unless the identity of the person is clearly established. Montana law views personal knowledge as the best form of identification, and thus requires no further proof of identity. However, if the notary does not know the person, it is most prudent for the notary to request current, signed, and pictured ID before performing a notarization. Acceptable forms of identification include a driver’s license, a military or student ID, a passport, or a government issued ID. If there is any doubt as to the person’s identity, the notary should refuse to perform the notarization.
STANDARDS FOR RECORDABLE DOCUMENTS
Many, if not most, of the documents which you will be asked to notarize will be recorded as a public document by a county Clerk & Recorder’s Office. Montana has adopted standards for such documents in MCA 7-4-2636. All notaries should make every effort to comply with these standards which designate ink color (black) and margins (1 inch side and bottom), so that the client will not be subject to the higher charge assessed for “non-standard” documents. [The full text for this statute can be found at: http://data.opi.state.mt.us/bills/mca/7/4/7-4-2636.htm.
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