Decline to Notarize Illegal Document

Decline to Notarize Illegal DocumentDecline to Notarize Illegal Document

If a Colorado notary knows or has a reasonable belief that a notarial act or the associated transaction is an illegal document, or is fraudulent, or unauthorized, the notary should decline to notarize.

In some states, notaries take an oath or affirmation to support and defend the Constitution of the United States and of their state of residence. They could decline to notarize if an illegal document violates the Constitution, especially the Bill of Rights.

A notary, who is not a licensed attorney in Colorado, may not give legal advice about the document or transaction.  The notary should make sure that the notary certificate is in compliance with Colorado notary laws.  The notary may make a correction to a defective notarial certificate, or attach a correct certificate, that follows Colorado law.

Missing Notary Certificate

Common problems include homemade letters or documents that are missing a notarial certificate.  The notary can show the customer the types of notarial certificates that are available in Colorado, and the customer can choose the certificate they want.  The notary can offer educational information on notarial certificates, but the notary should not give legal advice to the customer.

If the notarial certificate is missing, the certificate may be added by the customer, using copy and paste into an electronic document.  Or, the notary can handprint or rubber-stamp the notarial certificate on the document, or attach a loose notarial certificate by stapling it to the document.  To prevent fraud, a loose certificate should include a description of the document, so that it may not be removed and attached to another document.

Defective Notary Certificate

A defective or illegal document may originate in another state, where the notary laws are different.  A notarial certificate from another state may be corrected or replaced to comply with Colorado notary laws.

Some companies create a defective or illegal document by allowing employees who are not attorneys to prepare legal forms or documents.  This is a common problem when companies ask notaries to perform ID verification for processing federal Form I-9 when hiring new employees at a remote location.  They ask a notary to serve as an agent or authorized representative for the hiring company, to check the ID of the new employee.

Form I-9

In addition to the Form I-9, they often include an illegal document as a company-made form, asking the notary to certify they have inspected the ID, and then notarize their own signature.  A notary cannot notarize his/her own signature.  A notary must be a neutral and impartial witness and is disqualified from notarizing if he/she is named in the document.  A person who is a notary may process a Form I-9, if they act as an agent of the hiring company, and not in the capacity of a notary.

Medallion Signature Guarantee, Notary Acceptor, Endorsement

Some illegal document requests are for notaries to perform acts that are not authorized by law, such as a Medallion Signature guarantee (done by a bank or brokerage firm), acting as a notary acceptor or mailing agent to send documents and track for response or non-response from the recipient, serving as a witness to certify an event occurred, using the official capacity as a notary in an endorsement or promotion for a product or service, and putting a false date on a document.

No Legal Advice

Notaries do not read documents to provide legal advice or legal opinions.  But, notaries do scan documents to look for blank spaces that must be filled in or missing attachments.  While scanning, a notary may look for signs of an illegal document.

Reasonable Care

If a problem is detected, and no criminal intent is suspected, the notary should attempt to correct the defect and complete the notarization to serve the public.  Notaries are not authorized to serve as investigators, but they should use reasonable care to verify that the customer has satisfactory evidence of identification and is authorized to sign the document.

It is reasonable to inquire if an employee is authorized to sign a contract for a company or to confirm that a person is authorized to act as an agent under a power of attorney, or as a trustee under a trust.  Supporting documents may be requested. Under the law of agency, certain acts must be done only by the principal and may not be delegated to an agent.

Fraud Detection

Some notaries may have read articles or taken training classes to help detect or prevent fraudulent or illegal activity.  If a notary, from his/her knowledge or training, has reasonable belief that a notarial act or the associated transaction is illegal, fraudulent, or unauthorized, the notary should decline to notarize.

The information about the declined notarization should be entered in the notary journal.  This provides evidence that the notary is screening for illegal acts.

Disclaimer: This information is not legal advice.

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