Questions about credible witnesses

Jerry Lucas in his blog explains that when a notary identifies a person who requested a notarial act (the requester) by means of a credible witness, the notary should have the credible witness complete an affidavit attesting to the identity of the requester. The sample provided by Mr. Lucas includes statements that the requester lacks acceptable identity documents, and that the affidavit is attached to the document that the requester is having notarized.

I've looked at the Colorado Notary Handbook (March 2019), at the version suggested by the Uniform Law Commission, and Vermont's version. None of these require that the requester lack acceptable identity documents. That is an idea that comes from California. The commentary in the Uniform Law Commission version indicates the reason for the provision is to accommodate requesters who lack identity documents, but it is not an actual requirement in the law.

An instance, often discussed in internet notary forums, is a person who has an identity document in one form, for example, a driver license in a maiden name, and needs to sign a document in a different name (for example a married name, when the person just got married an hour ago). The credible witness might refuse to swear the person has acceptable identity documents; the person does have an acceptable identity document, it just isn't in the name the requester want's to use.

The other issue is attaching the credible witness affidavit to the document the requester is getting notarized. I don't believe this is correct. The notary does not attach identity evidence to the requester's document. The notary wouldn't attach a copy of the requester's driver license, nor a photo of the requester and the notary when they were together when they were both ten years old, so it would be equally inappropriate to attach the credible witness affidavit. Instead, the notary should retain the affidavit in his or her records in case the notarization is ever questioned.


Local Civil Air Patrol has new website

An organization I volunteer with, the Rutland Composite Squadron of the Civil Air Patrol has a new website. This group is always looking for new members: cadets age 12 to 18, pilots, communicators (such as amateur radio operators and dispatchers), hikers, and other interested adults.


Crypto for notaries

Today I saw notaries asking about encryption on two notary forums. First I saw this request from Cheryl Elliot about document encryption for documents to be sent to title companies or the like. Then I saw a more general question from Linda Kauffman about encryption for notaries.

So what are some general requirements that notaries would look for in encryption software? The first question is whether the files are to be encrypted on the notary's PC in case the PC gets stolen or if they are to be sent to other people in encrypted form. I don't have enough knowledge to write about the first question, I'll only write about encrypting files to be sent to others.

So lets look at potential recipients. Some may be home users on a tight budget. They won't buy anything just for encryption, and they won't buy software that costs hundreds of dollars (or $XX per month for a subscription). So they will have Adobe Reader, but they won't have Microsoft Office or Adobe Acrobat. They might be unwilling to download software from an unfamiliar source, or might not be competent to do so.

Other potential recipients will be using computers issued by their employers, which are good-sized corporations or government agencies. They'll probably have Microsoft Office (although possibly an old version) and Adobe Reader, but maybe not Adobe Acrobat. They won't be allowed to download and install any software.

As a group, potential recipients will use a variety of email solutions, and will not be willing to establish a new email account just because this special email account supports the encryption favored by the notary. So email encryption is a non-starter; it will be necessary to encrypt the document separately and send it as an attachment to an email.

The only common software mentioned in all of the above is Adobe Reader. Adobe Reader supports both password protection and public key cryptography (also called public key infrastructure [PKI], digital certificates, or X.509). But setting up public key cryptography is a complex business, so I'll only consider password protection. The notary can do this by subscribing to Adobe Acrobat. The password-protected files produced by Acrobat can be read by the free Adobe Reader that virtually everyone has.

The notary can save money by downloading and installing the free PrimoPDF. This supports the creation of password-protected PDFs. It is similar to various print-to-pdf functions out there, and causes some subtle changes to the images, such as dots-per-inch changes, so may not be suitable for some files.

The process of sending password-protected PDFs is essentially a one-way solution. If the recipient wants to send an encrypted reply, but doesn't have Adobe Acrobat, and isn't allowed to install PrimoPDF, the recipient won't have any way to send the encrypted reply.


Quiz for those who request notarizations

A frustration for notaries who are not attorneys (like me) is the person who decided what kind of notarization to ask for seems to have asked for the wrong notarial act. But, not being an attorney, it isn't the place of the notary to advise the requester about which notarial act would be best.

I've created a quiz which is aimed at those who request notarizations, to see if they know which notarial act would satisfy their needs. This quiz is based on the new Revised Uniform Law on Notarial Acts which will go into effect (for most purposes) on July 1, 2019.

#1 For an acknowledgement, what assurance does the relying party NOT receive?

#2 If a relying party asks for a verification on oath or affirmation, in which situation is the relying party most likely to be disappointed?

#3 For a signature witnessed by a notary, what assurance is lacking?

#4 For an affirmation of office, what assurance is lacking?

#5 An individual signed as a representative of a corporation and acknowledged before the notary. What assurance is there that the individual was authorized to sign?

#6 The requester needs to scan a multi-page record after it has been notarized. The requester should ask the notary to...




Time to renew Vermont commission

Every Vermont notary commission expires February 10, 2019. The process to renew has changed, as explained by the Vermont Secretary of State, Office of Professional Regulation. You will want to get started now, because there are several steps.

First, download the oath form, go to a notary, and take the oath. You and the notary fill out the form. Scan it.

Next, establish an online account with the Office of Professional Regulation (if you already have an account because you already have a license, like a land surveyor, use it). Apply for a notary commission; at the right point in the process, upload the oath.

Once you have the commission, use your new commission number to order a stamp, embosser, or both. If you already have these, you might have your commission expiration date on them, and you will have to stop using them after February 10. When you order the new stamp, phone the vendor and make sure they are aware of the changes in requirements for Vermont stamps and embossers.

If you have a stamp or embosser with no expiration date on it, you can keep using it until July 1, when the new stamp rules go into effect.


File types for eNotarization

This post will focus on the Windows operating system, but similar issues apply to Linux, Mac OS, and the operating systems for IBM mainframes. When we think of the type of documents that are likely to be notarized, PDF immediately comes to mind, but there are other file formats that are designed to accommodate digital signatures, and there could be use cases for notarizing in these formats.

Perhaps the most obvious PDF alternative would be the Microsoft Office formats, including Word and Excel. These programs have built-in electronic signature support, and many people have access to these programs. Access to the program needed to create PDFs with digital signatures, Adobe Acrobat, is much more limited. There are freeware alternatives to Microsoft Office, such as libreoffice/ although their eSignatures are not compatible with Microsoft Office.

A less common format, but potentially important in the real estate world, is Autocad (.dwg). This is a popular format for technical drawings, including land surveys.

If a notary obtains a digital certificate from a general-purpose certificate authority, such as IdenTrust the notary could use it to notarize any of the files described above. But if the notary uses one of the online platforms specifically intended for eNotarizations, such as DocVerify, the result will always be a PDF. Obviously, such formats won't be useful for some situations. For example, when viewing an AutoCad drawing, one can easily zoom in and out, measure distances, and turn layers on and off; those actions would be impossible or difficult with a PDF.


Quiz on new Vermont notary law

I have created a quiz about the new Vermont notary law, Act 160 of the 2017-18 session (PDF). It is based on, but not identical to the Revised Uniform Law on Notarial Acts (RULONA). A version of RULONA that includes some commentary by the group that created it is available (PDF).

Remember I'm not an expert; you should do your own research and consult experts as necessary before relying on any information from this quiz.


You agree with me, but I'm not in a position of authority, so check with an expert before relying on the information implied by the quiz.

You don't agree with me, but I'm not in a position of authority. Check with an expert before relying on information implied by the quiz.

#1 After July 1, 2019, what new notarial act will you be able to perform?

Witnessing a signature is the new notarial act, and the correct notarial wording must be in, or added to, the record.

#2 In the new law, a "record" could be any of the following EXCEPT

#3 An example of a tangible record is

#4 Under the new law, for tangible records,

#5 A land surveyor requests a notarization for a drawing on mylar, but the notary's stamp would smear. The notary should

#6 Why should a notary wait until being commissioned before ordering an official stamp?

The contents of the official stamp are not in the law, but the Office of Professional Regulation has posted a sample on their website, and it contains a commission number.

#7 Referring to § 5367 of the new law (Act 160), the requirement "(2) be signed and dated by the notary public and be signed in the same manner as on file with the Office", if the record is electronic,

No rules about electronic notarizations have been published as of December 4, 2018.

#8 Under the new law, which notarial act is no longer authorized?

#9 According to § 5304 of the new law, which of these is a verification on oath or affirmation?



Use cases for electronic notarization by Vermont notaries

When are Vermont notaries likely to perform electronic notarizations (e-notarizations)? Lets begin by distinguishing between

  • in-person e-notarizations, where the notary and the signer meet in a place with computer(s) and perform the signing and notarization on one or more computers, and
  • remote e-notarizations, where the notary and signer are in different locations and communicate via the internet, with voice and video communications, plus an ability to send the document to be signed and notarized back and forth.

Virginia already has a head start in remote e-notarization, and other states are also allowing their notaries to perform these for signers located anywhere in the world. Since Vermont notaries won't be authorized to do this until July 1, 2019, at the earliest, it will be hard for Vermont notaries to catch up. Probably the best chance would be if large services farm out the actual notarizations to notaries who work from home, a sort of cottage industry. (This post isn't addressing whether remote e-notarizations are a good idea; the general assembly has decided to authorize them so the debate is largely over.)

The cases where in-person e-notarization by Vermont notaries incude

  • notarization of documents that need to be in electronic form for individuals who don't have the identification documents or credit history needed for remote e-notarization
  • notarization where electronic documents are required but one or more stakeholders are skeptical of remote e-notarization
  • notarization of electronic files in a format not supported by the mass-market remote e-notarization providers; for this option to be available in Vermont, the Vermont notary rules will need a sufficiently flexible e-notarization approval process.

Deciphering some exemptions in the new notaries public law

Vermont's new notary public law, a version of the Revised Uniform Law on Notarial Acts, contains section (§) 5341, "EXEMPTIONS". It has three subsections, (a), (b), and (c). In my opinion these subsections are nearly independent, as I will explain.

Subsection (b)

I will begin with (b), because I think it's the easiest to understand.

This subsection exempts attorneys from the need to take an initial exam or continuing education. Also, complaints of violations against attorneys will be handled by the Professional Responsibility Board, which hears non-notarial complaints about attorneys already.

Subsection (c)

This subsection sets forth those exempt from paying the fee described in § 5324. The list of persons exempt is similar to the list in subdivision (a), but not all court personnel are exempt, only those designated by the Court Administrator. Another difference from subsection (a) is that justices of the peace, town clerks, and their assistants are exempt.

In my view the subsection (a) requirement that the persons are exempt only while acting within the scope of their official duties only applies within subsection (a), and that persons named in (c) but not (a) may perform any lawful notarial act for anyone any time. I read this chapter to mean that a person named in subsection (c) but not subsection (a) could charge a fee for the notarial act, in accordance with the regulations to be issued by the OPR, unless some other law forbids charging a fee.

Subsection (a)

Subsection (a) generally exempts people set forth in subdivision (2) of the subsection from "all the requirements of this chapter" (that is, CHAPTER 103. NOTARIES PUBLIC) except the requirement "to apply for a commission as set forth in section 5341 (a), (b)(1)-(3), (c), (d), and (e)", and to pay the fee set forth in §5324 [unless person qualifies for the fee exemption in subsection (c)]. However, this exemption only applies "when acting within the scope of their official duties".

The clause about applying for a commission is more interesting for what it excludes than what it includes; it includes what you would expect, like the need to fill out an application, be at least 18 years of age, and take an oath. But 5341 (b) (4) & (5) are excluded. The exclusion of (4) means the grounds to deny a commission that apply to other notaries do not apply to the notaries set forth in this subsection. The exclusion of (5) means the notaries set for in this subsection do not have to pass a test to get a commission.

An example of the effect of this subsection (in my opinion) would be a state trooper who took advantage of the exemption from taking an exam when applying for her first notary commission. This trooper would be allowed to perform notarial acts in the course of her official duties, but would not be able to notarize a permission trip so her neighbor's child could participate in a school field trip to Canada.

The persons set forth in subdivision (2) are generally in the courts, public defenders, prosecutors, or law enforcement officers. The scope of official duties set out in subdivision (3) covers the sorts of duties you would expect such persons to perform. The last clause in subdivision 3 is "(H) relates to a matter subject to Title 4, 12, 13, 15, 18, 20, 23, or 33 of the Vermont Statutes Annotated." This list omits some titles where many notarizations tend to occur, such as 17 (Elections), 27 (Property), and 32 (Taxation and Finance).

I believe this reinforces my view that the "acting within the scope of their official duties" phrase only applies to subsection (a), because the commonplace notarizations performed by some of the persons named in subsection (c), such as swearing in elected officials, taking acknowledgements on deeds, and administering oaths at property assessment hearings, are not within the scope of official duties described in subsection (a).

One might wonder what would happen if a person qualified for the exemptions in both subsections (a) and (c). Suppose the person took advantage of obtaining a commission without a fee, but elected to take the initial exam and continuing education. Would such a person be allowed to perform notarial acts outside the scope of his/her official duties? I think the case is unlikely to arise, because the Office of Professional Responsibility is designing an automated commissioning system. The system will probably not allow such a nuanced election. Hopefully the system will not be so rigid that a person in a position set forth in subsection (c) will be unable to apply for a regular commission with no exemptions, so that the person can perform a notarization outside the scope of official duties.


The Secretary of State's Office of Professional Regulation has issued a revised FAQ. It seems to me the new version of the FAQ generally agrees with my interpretation.


Information that must be in a notarial certificate

I have created a table showing which pieces of information must appear in a notarial certificate under the new ACT 160 passed in 2018 by the Vermont Legislature. For the most part, the law goes into effect July 1, 2019.