Governor’s Executive Order Imposes New Requirements on Notaries

Published on: March 22, 2004

It would be hard to think of an area that attracts less attention than notary public services, but concerns about fraud and the illegal practice of law have produced new rules that will mean significant changes for the state’s 130,000 notaries. The rules, embodied in an executive order signed last year by Gov. Mitt Romney, set specific performance standards and impose extensive record-keeping requirements on anyone providing notary public services in Massachusetts.

The order, signed December 19, was to have taken effect 60 days later, but Gov. Romney extended the effective date until April 19 to give notaries more time to adjust to the new requirements. Based on the Model Notary Act crafted by the National Notary Association, the executive order provides clear guidance telling notaries “what to do and how to do it,” and establishes safeguards designed “to prevent fraud, forgeries and other misconduct by a small, but significant number of notaries,” Gov. Romney said in a press statement accompanying his executive order. The standards, he added, “will improve the quality of notary services in Massachusetts and strengthen our ability to rely on signatures, whether in commerce or in the courts.”

The new rules respond in part to growing concern about “notarios” who falsely represent themselves as attorneys to Spanish-speaking immigrants. The executive order specifically prohibits the use of the term “notario” or “notario publico” or “any equivalent non-English term” in ads, business cards, notices, or signs. Additionally, the order prohibits anyone from “claiming to have powers, qualifications, rights, or privileges that the office of notary public does not provide, including the power to counsel on immigration matters,” and it requires any non-attorney notary advertising services in a language other than English to state: “I am not an attorney and have no authority to give advice on immigration or other legal matters.”

Good Practices

For the most part, the executive order reflects what most notaries would consider to be good practices. For example, it requires the principals to be present when documents bearing their signatures are notarized and it prohibits notaries from providing services to their relatives. But the new rules will require major changes in the wording notaries use, in the way they verify the identity of the principals in transactions or documents they notarize, and in the record-keeping requirements they must follow.

  • Identification.   
    • The executive order specifies that notaries must require “satisfactory evidence of identification,” defined as:
      • A current photo identification (such as a driver’s license) issued by a federal or state government agency; orThe notary’s “personal knowledge” of the individuals or the personal knowledge of a “credible witness” who is known to the notary.Documentation. Notaries must now keep detailed records of the documents or transactions they notarize and of the documentation they use to verify the identity of the participants. And they must record this information in “a permanently bound book that creates and preserves a chronological record” of all notary actions they perform. The goal is to prevent the removal or alteration of any of the pages and to ensure that notaries record and preserve detailed information about the notary actions they perform. Responding too one of the major concerns raised after the rules were announced, the Governor’s office has clarified that notaries do not have to make separate entries for each document – an obvious problem for real estate closings or other transactions in which the participants must sign stacks of documents. According to the clarifications, outlined in a series of “frequently asked questions,” notaries can make one notation describing each transaction or proceeding. But all entries must include the following details:
      • The type of document or transaction notarized.The parties to the transaction.The address of each party signing the document, along with their signatures, printed names, and addresses.The address where the document was signed and notarized.The fee, if any, charged for the notary service.The description of the “satisfactory evidence of identification” the notary accepted, including the issuing agency, the license (or other) identifying number, and the issuance or expiration date.Although the executive order does not require it, we think it is also a good idea to photo-copy the picture identification and attach it to the file — a common practice in our office for many years.
  • Notary’s statement.
    • The executive order requires specific wording in acknowledgments, jurats, witnessings, and certifications, so notaries will have to revise their forms accordingly. The model language for an acknowledgment states:
    • “On this [date] before me, the undersigned notary public, personally appeared_____________ (name of document signer), proved to me through satisfactory evidence of identification, which were _______________, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that (he) (she) signed it voluntarily for its stated purpose.”
    • Notaries don’t have to use this precise language, but they do have to use wording “substantially” similar to it.
  • Notary seal.
    • All notaries must now have an official seal, which was optional in the past. The seals may be ink (black ink only) or metal impression, but they must include:
    • The notary’s name.
    • The words “notary public.”
    • The expiration date of the notary’s commission.
    • The words “Commonwealth of Massachusetts.”
    • A facsimile of the Massachusetts state seal.

Additional Guidance

Announcement of the new notary rules stirred something of an outcry from notaries concerned about the record-keeping burden and about the possible impact on the validity of documents already recorded or in the process of being recorded. Conveyancing attorneys and mortgage lenders were particularly concerned about a provision specifying that notaries who are not licensed as attorneys “shall not conduct real estate closings and shall not act as a real estate closing agent.” However, the “frequently asked questions,” clarify that a non-attorney notary who works for a financial institution can notarize documents for an equity line of credit or a refinancing without being accused of engaging in the unauthorized practice of law.

The Governor’s office has also clarified that the executive order does not alter any existing statutory requirements.  The order’s intent and effect, the FAQs emphasize, is to establish standards for notaries and specify the grounds on which the governor can revoke a notary’s commission. The Governor has also indicated that he plans to revise the executive order to make it clear that notaries who work in Massachusetts but do not reside in the state can continue to notarize documents here – a point that was not clear in the original wording.  

Although the executive order will clearly require notaries to make some adjustments in the forms they use and in the records they keep, the major impact will probably be an economic one, measured by the increase in the income of companies selling the bound journals and the seals notaries will need to comply with the new rules.