By Peter Van Alstyne—When Sally Aikens tamed wild lions in the African savannas, she was never nervous. She knew her trade craft and understood lions. Her only tool was a whistle. She loved lions and lions loved her. In the Savanna, Sally was famous for her bravery and skills. Among the local populations, Sally was known as “the Lion Princess.” (The title “Lion Queen” was not available as Disney had tied it up under a copyright for a future movie.)
When Sally retired from lion taming and returned to the United States, she took a job in a large company. Her boss instructed her to become a notary public. Never before had Sally ever experienced the depth of fear she now faced having to serve as a notary. The very idea was terrifying. If Sally only knew what you are about to learn, her fears would have been dashed with the swiftness of a lion’s paw against its prey.
Most people who become notaries are nervous about notarizing. They are unsure about all of the rules and procedures. Most of all, many notaries are anxious about their risks if they do something wrong. There is an infinite variety of transactions upon which we can notarize. It makes the whole picture seem like a spinning, dizzying mass of confusion.
The Magic Notary Formula
There is a magic formula that will guarantee you legal protection against liability for your notarizations. It is called the standard of reasonable care.
The standard of reasonable care is the standard by which a notary is judged in a court of law. It is the standard by which a notary makes every notarial decision and action. If anything goes wrong, the notary need merely prove she exercised reasonable care in every step of the notarial service provided.
In order to fully benefit from the protection the standard of reasonable care offers, it is vitally important to understand it thoroughly. It is simple, but is also much more than just being “careful.”
The standard of reasonable care is generically defined as “the level of care and caution an ordinary reasonable, prudent person would exercise if they were in your position and circumstance.” This definition applies to every human being in America. Under United States common law principles, every person is under a legal obligation, or duty, to exercise reasonable care in all they do. For example, it would be a breach of reasonable care to hold a water balloon fight at a wedding dinner. On the other hand, such a water balloon fight might be reasonable at an uncrowded area of a public beach.
It would be a breach of reasonable care to leave a patient’s medical records on the magazine table in the doctor’s waiting room. However, it is not unreasonable to leave the patient’s records with the patient in the examining room.
The opposite of reasonable care is negligence. In notary law, the opposite of reasonable care can also constitute a violation of law. In both cases, the notary is legally liable for all of the damages caused by the breach of reasonable care. In order to bring a legal action against a notary for damages, the plaintiff must prove the notary breached the duty of reasonable care and/or violated a provision of notary law. The plaintiff must also prove the breach of care was the direct and immediate cause of the damages suffered.
The standard of reasonable care varies widely from situation to situation. It cannot be reasonably applied equally or uniformly across the board. Each circumstance bears its own unique set of facts and characteristics.
For notaries, the notarial standard of reasonable care is simple: do what a reasonable, prudent notary would do in your circumstance. The notarial standard of reasonable care requires of every notary three crucial basics:
1. A clear understanding of the notary law.
We have all heard the old cliche, “ignorance of the law is no defense.” It is a true legal principle. It is utterly impossible to serve competently as a notary unless we have a competent understanding of the core basic of the notary law. Failure to take all reasonable steps to acquire that competent knowledge of the notary is negligence and a reckless disregard for the official duties the notary is required to know.
Notarial dogma, traditions, rumors or anything that cannot be substantiated by law are invalid and unacceptable. Some people argue that it doesn’t matter whether their interpretation of a notarial requirement is based in law or not. They argue “that’s just the way it is and that’s what you must do. Period.” What they are really saying is, “don’t confuse me with the facts because I can’t bring myself to admit I’m clueless.” How helpful.
2. Absolute integrity.
The notary holds an extremely high public trust to perform every notarial service with utmost honesty and accuracy. There is no margin for error or deception. There is no defense for falsehoods or recklessness. Every word of the notarial certificate must be true and the certificate must be complete. There is no legal defense for falsehoods in the notary journal.
Every step of the notarial process requires the notary to pass judgment regarding each component of the process. The public trust placed in the notary is profound: it trusts the notary to make a complete journal record of the notarial act to protect the document signer, to protect the public at large, and to protect the interests of the courts. The public trusts the notary to truthfully verify the signer’s true identity by means specified by law and reasonable care. It trusts the notary to verify the signature to the document that is being notarized is genuine and was made willingly and freely. It trusts the notary to utilize notarial wording that complies with state law, that is understandable, clear and complete.
3. A mature sense of prudence.
By definition, a reasonable person is a prudent person. Such a person is one who thinks through her actions and conduct. She foresees the consequences of her actions and avoids those which would be harmful to others. A prudent person is one who doesn’t cut corners or rushes through things in a sloppy manner.
A prudent notary understands the legal ramifications of the notarial process. She knows why every step of the process is required and how it protects the signer, the public and the notary. She never cuts corners and never shades the truth
A prudent notary does not overkill. It is imprudent to carry notarial procedures too far, such as requiring fingerprints in a notary journal or requiring more photo ID than is required by the notary law. It is imprudent to affix a notary seal to overlap your signature or the document signer’s signature.
It’s never nice to call someone a “prude.” But it is a high compliment to call a notary “prudent.”
The Legal Defense of Reasonable Care
The strongest defense a notary has against accusations of wrongdoing is that she exercised reasonable care in every step of the notarial process. Without such a legal defense available to us, none of us would serve as notaries. We are not the FBI and we aren’t expected to identify and catch criminals and forgers. We serve a crucial role in the system of law and commerce to provide a degree of security to written transactions through our notarizations. They are highly effective against forgeries and other forms of fraud.
When accused that the signature that was notarized was in fact a forgery, the notary’s burden of proof in defense is that she exercised reasonable care: she complied with every requirement of law and used prudence and caution to verify the signer’s identity and that the signature belonged to him. If the signature proves a forgery, the notary isn’t liable because she fully complied with the rule of law: the standard of reasonable care, and she can prove it in her notary journal.