You may need notarization that requires special handling. For example, the document signer is blind cannot speak English or has a disability.
In any special situation, the notary will make every effort to accommodate the person's request. If the notary is unsure about the notarization, though, you may be declined notary services.
Florida law addresses some of these situations, but not all. There are, however, some commonly accepted practices for unusual notarizations. Unless a notary is an attorney, the notary may not give legal advice when providing notary services. Notaries are prohibited from advising the signer which notarial act is required for his or her document, from preparing legal documents, or from explaining the contents or legal effects of a document.
If the notary believes that the person does not fully understand the document he or she is to sign, the notary may decline to notarize and suggest that the person seek legal advice from a competent attorney.
For a person who is mentally incapacitated
§§117.107(4) and 117.107(5) Florida Statutes
The law prohibits notarizing the signature of a person who you know has been adjudicated mentally incapacitated by a court of competent jurisdiction if that notarization pertains to a right that has been removed. These rights refer to such things as the right to vote, to marry, to execute conveyances of real property, etc.
What if the person is usually mentally competent, but is medicated at the time of the notarization, or what if a family member says the person is "in and out" of lucidity due to Alzheimer's disease or some other mentally debilitating ailment?
When performing any notarization, the notary may question the signer to determine that he or she is willing and competent to execute the document. A notary may:
- Want to have an impartial witness for the notarization.
- If asked to go to a hospital or nursing home to provide services, check with the patient's nurse or doctor prior to notarization.
- Talk to the person alone. Ask questions unrelated to the notarization. Ask for his name, home address and telephone number. The notary may also engage the person in a conversation about his family, his occupation, a television program, a recent news event, etc.
Ask the signer to tell the notary about the document to be notarized. What kind of document needs to be signed? Has the the document been read completely? Does the signer understand the document? Does someone need to explain the contents of the document? Has anyone pressured the signer to sign this document?
For a person who is blind
§117.05(14)(a), Florida Statutes
The law requires that the document must be read to the document signer before the notarization.
Unless the notary is an attorney, the notary cannot advise the person about the contents of the document; however, you may re-read any portion of the document to the person.
For a person who does not speak English
§117.107(6), Florida Statutes
The nature and effect of the document must be translated into a language that the person does understand. The law does not specify that a written translation is required; therefore, an oral translation is sufficient.
The translator may be asked to sign the document and the notary's journal.
For a person who is deaf
The obvious problem that exists in this situation is communication. Unless the notary and the signer are competent in sign language or lip reading, the notary may communicate with the person by writing notes.
For a person who is signing a document written in a foreign language not understood by the notary
The notary must be sure that he can communicate verbally with the document signer or that a qualified, trustworthy translator is present.
The notary will determine, if possible, that the document is complete.
The notary will check the document for a notarial certificate. If the document does not have a notarial certificate, he will ask the document signer for instructions. If the signer directs the notary to which notarial act is appropriate for the document, the notary will proceed by adding the correct certificate and completing the notarization. If the signer does not know, the notary will refuse to notarize.
The notary will complete the notarial certificate in English. The certificate may be translated into the language of the document, but the translated certificate should not be signed and sealed by the notary.
If the notary is unsure about the notarization, he will refuse to notarize.
For a person who is illiterate
Although not required by law, the notary may read the document to the document signer before the notarization.
Unless the notary is an attorney, he cannot advise the person about the contents of the document, however, he may re-read any portion of the document to the person.
For a person who signs by mark
A notary may be asked to notarize the signature of a person who signs with a mark. The person may be illiterate or may have a physical disability which prohibits him or her from signing in the customary manner. See §117.05(14)(b), Florida Statutes.
The notary will:
- Question the signer to make sure that he or she understands the nature and effect of the document to be signed. If the person is illiterate, the notary will read the document to him or her. If the person does not understand, he or she will be referred to an attorney for legal advice and the notary will not proceed with the notarization.
- Ask for proper identification.
- Perform the appropriate notarial act: administer an oath or take an acknowledgment.
- Before the person signs the document, the notary will print his or her first name at the beginning of the signature line and the last name at the end of the line. Just below the line, the notary will print the words “His Mark” or “Her Mark”. Then, the notary will ask the person to make his or her mark on the designated line.
- The notary will complete the notarial certificate with all the required information. When filling in the person’s name whose signature is being notarized, the notary may want to indicate that the person signed by way of mark
- Two uninterested persons must witness the signing of the document and the notarization and that their names and addresses be clearly printed under their signatures.
For a Person with a Disability Who Directs Another to Sign
On a rare occasion, a notary may be asked to notarize the signature of a person who cannot sign a document in the usual manner. An individual with a disability may direct a notary to sign on his or her behalf. §117.05(14)(b)(d). In a sense, one person substitutes his hands for the hands of the person with a disability.
The notary may:
- Question the person to make sure that he or she understands the nature and effect of the document to be signed. If the person is blind, the notary will read the entire document to him or her. If the person does not understand, he or she will be referred to an attorney for legal advice and the notary will not proceed with the notarization.
- Ask for proper identification from the person with a disability. It is not necessary to require identification from the designated signer. Think of that person only as the “hands” of the person with a disability.
- The notary may then sign the signature of the person with a disability at the direction of and in the presence of that person.
- Perform the appropriate notarial act: administer an oath or take an acknowledgment. The notarial act will be directed to the person with a disability.
- Complete the notarial certificate with the required information. When stating whose signature is being notarized, it would be best that the notary indicate the special circumstances of the signing.
- Two persons with no interest in the transaction must witness the signing of the document and the notarization and that their names and addresses be clearly printed below their signatures. Unless otherwise required by law for the particular document, it is not necessary for the witnesses’ signatures to be notarized.
- The notary may ask the witnesses and the designated signer to sign their journal.
For a Person Signing with Power of Attorney
Situation: John Doe presents a document to be signed by Nancy Smith. John Doe states that he has power of attorney for Nancy Smith. John Doe signs the document in one of two ways:
- John Doe as attorney-in-fact for Nancy Smith
- Nancy Smith by John Doe, attorney-in-fact
The first way is the preferred method.
It is not the notary‘s responsibility to ensure that the signer has power of attorney. The person states he has that authority and indicates this fact when he or she signs.
Note: If you are notarizing in connection with your employment, you may need to require a copy of the POA for your employer‘s files.
The notary will note the capacity of the signer in the notarial certificate. A notarial certificate in substantially the same form as for an acknowledgment in a representative capacity will be used.
For a Person Who is a Minor
Generally speaking, the notary may notarize for a minor; however, all of the requirements of the notary laws must be followed.
Is there an age limit?
The notary laws do not limit notarizations based upon a person’s age. The Governor’s Notary Section recommends that a notary exercise caution when notarizing for a minor. In particular, the notary should determine whether the minor understands the nature of an oath or acknowledgment before notarizing.
For example, a woman recently called our office to ask whether she could notarize the signature of a 4-year-old child. The father wanted to transfer the title of a boat to his child. A child of this young age would probably not understand the transaction. On the other hand, we recently encountered a situation involving a 12-year-old child who wanted to submit a sworn statement to the court regarding an incident that she witnessed. She actually wrote down what she had seen and wanted to sign her statement and swear to it in the presence of a notary. Most likely, a 12-year-old child would understand the act of swearing to the truthfulness of a statement.
In these types of situations, the notary will question the child to make sure that he or she understands the nature of an oath or an acknowledgment. The notary should also determine that the child is not being pressured or coerced to sign the document.
When a child is too young to comprehend the transaction, a parent sometimes signs on behalf of the child. If asked to notarize in that situation, it is the parent’s signature that is to be notarized, not the child’s.
What about identification for a minor?
Any time a signature is notarized, the signer, including a minor, must provide acceptable identification to the notary. The problem, of course, is that most minors do not have one of the forms of acceptable identification listed in the Florida Statutes. There are two possible solutions.
First, you may be interested to know that any person 12 years of age or older may be issued
a state identification card. To obtain the card, the person should apply at the local Division of Motor Vehicles office where driver’s licenses are issued.
Second, you may use the sworn written statement of a credible witness to identify the minor.
When asked to notarize the signature of a minor, the notary may refuse to do so if unsure about any aspect of the notarization. In unusual situations, the notary may even suggest that the minor or his or her parent or guardian see an attorney.