An interesting conundrum popped up on my state bar’s listserv recently. It seems that an attorney tried to have a Durable Power of Attorney notarized at her bank, and the bank said she had to do it at the local courthouse because only the county clerk had the authority to determine the validity of a DPOA. She was justifiably bemused– since when does a notary have the right, or even responsibility, to determine the validity of a document?
A notary’s job is not to attest to the facts or assertions or statements or anything else contained in a document. Their job is to point to a fellow’s signature and say “yep, I watched this guy sign the document and he showed me his ID that said his name is Bob Fibber, and –> that’s Bob Fibber’s signature.”
End of analysis. Notaries are not brought in to give a document’s contents any legal weight. They’re brought in to attest to a signature’s validity.*
My colleagues on the listserv offered that it may be the bank’s policy to not notarize documents drawn up by lawyers (which pretty much eliminates half of the documents they notarize, I’d wager), but the fact they even think they can critique the document is a bit disconcerting. In short, what’s the point of offering notary services to your depositors if you’re going to tell them what they can and cannot sign? This is dangerously close to the unauthorized practice of law.
One colleague expressed frustration with having to repeatedly educate bank officers. One. Officer. At. A. Time.
But the misconception even affects lawyers, especially when an Apostille is involved. To clear up the misconception, an Apostille does no more than a notarization does. It points to a notary’s signature and says “yep, Sally Clark is a notary designated by the proper authority in this jurisdiction, and –> that’s Sally Clark’s signature.” **
Occasionally, a debate arises in which someone says “um, you can’t Apostille a contract, because a contract isn’t a public document.” To be sure, the name of the treaty is the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. (Emphasis mine.)
True– a contract is usually not a public document. But the notarization is. (Thus the term notary public.) And that is, again, what the Apostille refers to. Not the contents of the document, not even the validity of the signature thereon, but the validity of the notarization.
Could someone help me down? This soapbox is quite tall.
* Of course, the signature of a public official on a public document is different, but that’s not the issue here. The issue pertains to a notary, not a government clerk.
** Bob Fibber and Sally Clark are entirely made up names. There may very well be a real Bob Fibber (what an unfortunate name) and I’m certain there are many real Sally Clarks. I don’t know them, and the use of their names herein must not be construed as… aw, to heck with the legalese. You get the point.