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October 1, 2017

Notary also as a witness

Filed under: Ken Edelstein — admin @ 12:15 am

Notary as Also a Witness
Despite the popular expression, this Old Dog is learning new tricks. But first, a little background as to how I “used to” handle this issue. When I am able to review in advance the docs (edoc) I always would scan to see if there was a witness requirement. If so, I would ask the entity that assigned the job to me if there really was a requirement for one or more witnesses. Often the response was that x state did not require them and to just ignore that area. Other times I am told there indeed needs to be two witnesses and that I am permitted to be one of them.

I looked up this issue on NNA – https://www.nationalnotary.org/notary-bulletin/blog/2014/12/can-notary-serve-as-witness and the issue becomes a bit murky (at least to me). It seems that some states allow the notary to also be a witness but at least one (probably more) do not. I must assume the directives I receive from “higher up” take the local requirements (where the document will be used) into consideration. Now I’m not so sure that I should be taking “advice” from them.

I’m firmly of the belief that a document must “stand by itself”. Here in NY we have a prohibition against notaries notarizing the signature of the person who the will is for. I have had attorneys tell me they will be “on the other end of the phone – supervising the process”. But, many years from now, it’s only the Will itself in the courtroom. There is no record of the lawyer involvement. Thus I do not notarize any Wills.
The document currently under consideration is a Durable Power of Attorney. I have been asked by the private party client to be one of the witnesses. I replied:

The major gifts rider calls for 2 witnesses.
As the appropriateness of the notary also being one of the witnesses varies with the jurisdiction when the document is being used:
I decline to be one of the witnesses.
I suggest persons without any possible financial interest be selected for this function.

This issue is similar to the black vs blue ink issue. NY State mandates all notary signatures to be in black ink. However some counties in Florida require all signatures to be in blue ink. What to do? Well, blue will allow the deed/mortgage to be filed; black will comply with my license law. No, I’m not going to, on this issue say what I do; but I do consider that it’s pointless to partake in a notarization with rejection a great possibility.

Back to the Notary as also a witness. The POA before me can be used anywhere; I certainly don’t know where it will be used. Thus I decline to be both a Notary and a Witness on the same document. I know this creates a greater burden on the client. But, consider what might befall the Notary. If the POA is rejected, I might become the defendant in litigation where money was lost due to the “there” conclusion of improper processing. Would my E&O cover that? I don’t want to find out.
I doubt the wrath of State Department will land on me for using a very dark “blue” pen. I have often spoken to other NY notaries and many use blue ink so it “stands out” and does not appear to be a photocopy! That might have been a justification prior to the widespread use of color copiers. Also, signing as a Witness, with the greater possibility of complete rejection seems a greater risk.

Now my path is going to be the safest one. I will no longer sign anything as both a Witness and Notary. Sure, I will probably lose an assignment or perhaps a few. It’s a risk vs reward issue. The reward is a routine notary fee; the risk is a summons that might incorporate a rather high dollar exposure. By analogy from my flight training instructor: There are Old Pilots, and there are Bold Pilots. However, there are no Old Bold Pilots.

Wondering if I’m just “Chicken”? I leave a trail of feathers behind me wherever I go.

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