It is of utmost importance that the individual who is to have a document notarized personally
appear before the notary public. A notarization over the telephone is absolutely forbidden. Notarization
for remotely located individuals may be performed only by commissioned remote online notaries public.
A notary who is not a licensed attorney may not engage in the practice of law. If a notary attempts
to assist someone in the preparation of legal papers such as contracts, deeds, powers of attorney, wills, or
bills of sales, such acts may constitute the unauthorized practice of law.
One who has a beneficial interest in a document, no matter how small or nominal the interest,
cannot act as a notary public relative to that document. Therefore, one partner cannot as a notary public
take the oath of a co-partner in a matter in which the partnership has an interest. However, a notary who is
an officer, employee, shareholder, director, or agent of a corporation, trust company, bank, or building and
loan association, may take the acknowledgment of any party to any written instrument executed to or by
the corporation, trust company, bank or association, or administer an oath to any officer, employee,
shareholder, director, or agent of the corporation, trust company, bank or association, or protest
nonacceptance or nonpayment of bills of exchange, or negotiable instruments which may be owned or held
for collection by the corporation, trust company, bank or association; provided, that it is unlawful for any
notary to take the acknowledgment of any party to an instrument, or to protest any negotiable instrument,
where the notary is individually a party to the instrument.
Mere relationship to a party does not disqualify a notary. Thus, a wife, who is a notary public, may
notarize her husband’s documents, provided the wife does not derive a beneficial interest therefrom.
A notary should never notarize a document unless the notary is absolutely satisfied after reading
through the notarial certificate, that whatever the notary is certifying to is true and correct. For example, if
the notarial certificate indicates that a corporate seal is affixed to the instrument being notarized, the
notary should check to be sure the seal is attached.
Persons Who Are Unable To Sign
If a person appearing before a notary physically cannot sign the person’s own name or make a mark
on a document presented for notarization, a notary may sign the name of the person, provided that the
notary is satisfied that the person has voluntarily given consent for the notary to sign on the person’s
behalf, if the notary writes, in the presence of the person: “Signature affixed by notary pursuant to section
456-19, Hawaii Revised Statutes.” beneath the signature, and if a doctor’s written certificate is provided to
the notary certifying that the person is unable to physically sign or make a mark because of the disability,
and that the person is capable of communicating the person’s intentions.
If a person is able to make a mark on a document, the notarization forms should reflect that the
person is signing by a mark. In such instances, an attorney may require the presence of at least two
impartial witnesses to witness the signing by mark, and the notarial certificate will be drafted to reflect
their presence. Thereafter, the person places the person’s mark on the document and the notary indicates
that it is the mark of the person in question. Example: X (mark of John Doe).
Civil and Criminal Liability
A notary who willfully and knowingly breaches the notary’s official duty may be liable to one
injured as a result. A notary may be also liable for a negligent performance of duty resulting in an injury.
In the event of a breach of notarial duties, the notary may be also subject to criminal liability. For
example, a notary could be found guilty of the following:
1.
Extortion—the wresting of anything of value from another by duress, force, or by any undue
exercise of power.
2.
Forgery—the fraudulent making or altering of a writing, with the intent to deceive another
and prejudice the person in some right.