New certificates just in time for nonbinary driver licenses

During the summer of 2019 the Vermont DMV will offer driver licenses with the gender listed as "other". A serendipitous change in the notary law goes into effect July 1, providing short certificates for most notarial acts. The certificates are so short that they do not contain any pronouns (he, she, they, etc.). So the notary will not have to wonder how to word a certificate for a person requesting a notarial act who does not self-identify as male or female.

This contrasts with with California, which has mandatory certificate wording for many notarial acts which include pronouns, which do not have any provision for a pronoun for a nonbinary person, and which does issue driver licenses with the gender listed as "X". Apparently serendipity does not occur in California.


New notarial certificates coming soon

The new short-form notarial certificates for Vermont go into effect Monday, July 1, 2019. They are not mandatory, but it would be a good idea to study the law if you're not going to use them (or even if you are).

The format in the law is hard to read. I made some Microsoft Word documents that I plan to use myself. I'll share them, but you must realize that I'm not a lawyer, so use them at your own risk. "Your own risk" includes not only the risk that the forms might not have the legal results you hope for, but that the Microsoft Word files might include malware; I use Microsoft Security Essentials and have not noticed any odd behavior on my computer, but you can never be 100% sure.

The certificates were modified September 14, 2019 to make it more obvious what to write on each line. Another change was separating the box for the official stamp from the area for identifying the attached document, which is not an official part of the notarial certificate.


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.