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June 16, 2015

The Right to Decline Notarization

The Right to Decline Notarization
Notary must officiate on request.

The Penal Law (§195.00) provides that an officer before whom an oath or affidavit may be taken is bound to administer the same when requested, and a refusal to do so is a misdemeanor. (People v. Brooks, 1 Den. 457.)

The above is from the handbook of law provided to New York State notaries. Not much “wiggle room” there. I am writing this wondering if I just committed a crime! Of course we decline to notarize when something is “not right”, as we should. However, the issue before me is a request to officiate at the opening of a safe deposit box.

I have never participated in a safe deposit box opening. From what I understand, the notary is present and verifies the contents. It’s often a time consuming procedure. Generally it is a low paying function. I have heard that sometimes the notary is notarizing the statement as to the contents made by a bank officer. Other banks require the notary to make the statement as to the content and, as a notary, stamp and sign. That second procedure is a self notarization and illegal in New York State, and probably most other jurisdictions.

For the sake of discussion; let’s assume the procedure requested is the former, notarization of the statement by the bank officer. That’s certainly legal. The real issue is can mobile notaries legally refuse assignments? It is my understanding that a notary in a place of public accommodation (eg: at a bank) cannot refuse often saying “you must be a client of the bank”, any legal request. However, the mobile notary does not have a walk in location open to the public. Thus, IMHO the “before whom” does not exist; certainly that propinquity is not achieved “over the phone”.

One approach to avoiding unwanted situations is to price them very high. Sure, I’m available for your safe deposit box opening and my fee, with travel, is $500. But, that is a sham; and is sure to put you on the bank’s “do not call” list; possibly precluding an attractive assignment. I did not “high bid” my recent caller. I simply stated that I choose to not accept such assignments. And, that is the heart of the issue. Was declining a proper thing to do?

I have had people, despite my advertising to being a “Mobile Notary”; ring my bell and wish to enter my residence to have their document notarized. All of these have been declined. One or two were irate, and indicated that they would file formal charges against me. If they did, my licensing authorities probably dismissed their protest. I doubt there is any requirement to allow persons into my home, with the exception of Police, Fire, Building Inspectors, etc.

Unfortunately, the real issue remains, in my mind, a bit murky. Can I refuse a valid mobile notary request? If my schedule conflicts, I consider that a valid reason. But, if I am “available” do I have the right to “pick and choose” what mobile notary assignments I accept? We certainly do that all the time with Edocs from lowball disreputable callers. Many notaries do not like to notarize Power of Attorney documents. Many clients tell me their bank refused because Power of Attorney notarizations are “against bank policy”; presumably to avoid potential litigation.

Do we as individual mobile notaries have the right to refuse service to individuals for whatever reasoning we employ? The law cited above appears to require servicing all legal requests. My “not before us” is probably on weak legal grounds; I am not an attorney. How do you respond to requests that you do not wish to accept; especially those from individuals with proper ID, etc.

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