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A) Electronic Notarization, B) Notarizing Wills, C) Refusing To Notarize, D) Unauthorized Practice of Law, E) Financial Interest, F) Advertising your Notary Services |
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FLORIDA NOTARIES PUBLIC - INTERACTIVE EDUCATIONAL COURSE |
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A) Electronic
Notarization
Section 1. (1) SHORT TITLE.--This section may be cited as the "Uniform Electronic Transaction Act." (b) "Automated transaction" means a transaction conducted or performed, in whole or in part, by electronic means or electronic records, in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract, or fulfilling an obligation required by the transaction. (c) "Computer program" means a set of statements or instructions to be used directly or indirectly in an information processing system in order to bring about a certain result. (d) "Contract" means the total legal obligation resulting from the parties' agreement as affected by this act and other applicable provisions of law. (e) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. (f) "Electronic agent" means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual. (g) "Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means. (h) "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record. (i) "Governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of this state, including a county, municipality, or other political subdivision of this state and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. (j) "Information" means data, text, images, sounds, codes, computer programs, software, databases, or other similar representations of knowledge. (k) "Information processing system" means an electronic system for creating, generating, sending, receiving, storing, displaying, or processing information. (l) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or any other legal or commercial entity. (m) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form, including public records as defined in s. 119.011(1), Florida Statutes. (n) "Security procedure" means a procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures. (o) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a state. (p) "Transaction" means an action or set of action occurring between two or more persons relating to the conduct of business, commercial, insurance, or governmental affairs. (a) Except as otherwise provided in paragraph (b), this section applies to electronic records and electronic signatures relating to a transaction. (b) This section does not apply to a transaction to the extent the transaction is governed by: 1. A provision of law governing the creation and execution of wills, codicils, or testamentary trusts; (b) This section applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct. (c) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this paragraph may not be waived by agreement. (d) Except as otherwise provided in this section, the effect of any provision of this section may be varied by agreement. The presence in certain provisions of this section of the words "unless otherwise agreed," or words of similar import, does not imply that the effect of other provisions may not be varied by agreement. (e) Whether an electronic record or electronic signature has legal consequences is determined by this section and other applicable provisions of law. (b) Be consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices. (c) Effectuate its general purpose to make uniform the law with respect to the subject of this section among states enacting similar legislation.
(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in the formation of the contract. (c) If a provision of law requires a record to be in writing, an electronic record satisfies such provision. (d) If a provision of law requires a signature, an electronic signature satisfies such provision.
(b) If a provision of law other than this section requires a record to be posted or displayed in a certain manner; to be sent, communicated, or transmitted by a specified method; or to contain information that is formatted in a certain manner, the following rules apply: 1. The record must be posted or displayed in the manner specified in the other provision of law.2. Except as otherwise provided in subparagraph (d)2., the record must be sent, communicated, or transmitted by the method specified in the other provision of law.3. The record must contain the information formatted in the manner specified in the other provision of law.(c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.(d) The requirements of this section may not be varied by agreement, provided:1. To the extent a provision of law other than this section requires information to be provided, sent, or delivered in writing but permits that requirement to be varied by agreement, the requirement under paragraph (a) that the information be in the form of an electronic record capable of retention may also be varied by agreement.2. A requirement under a law other than this section to send, communicate, or transmit a record by first-class mail, postage prepaid, or other regular United States mail, may be varied by agreement to the extent permitted by the other provision of law. (b) The effect of an electronic record or electronic signature attributed to a person under paragraph (a) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law.
(b) In an automated transaction involving an individual, the individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual: 1. Promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic record received by the other person.2. Takes reasonable steps, including steps that conform to the other person's reasonable instructions, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic record.3. Has not used or received any benefit or value from the consideration, if any, received from the other person. (c) If paragraphs (a) and (b) do not apply, the change or error has the effect provided by the other provision of law, including the law of mistake, and the parties' contract, if any.(d) Paragraphs (b) and (c) may not be varied by agreement. (b) A first-time applicant for a notary commission must submit proof that the applicant has, within 1 year prior to the application, completed at least 3 hours of interactive or classroom instruction, including electronic notarization, and covering the duties of the notary public. Courses satisfying this section may be offered by any public or private sector person or entity registered with the Executive Office of the Governor and must include a core curriculum approved by that office. 1. Accurately reflects the information set forth in the record after the record was first generated in final form as an electronic record or otherwise.2. Remains accessible for later reference.(b) A requirement to retain a record in accordance with paragraph (a) does not apply to any information the sole purpose of which is to enable the record to be sent, communicated, or received.(c) A person may satisfy paragraph (a) by using the services of another person if the requirements of paragraph (a) are satisfied.(d) If a provision of law requires a record to be presented or retained in its original form, or provides consequences if the record is not presented or retained in its original form, that law is satisfied by an electronic record retained in accordance with paragraph (a).(e) If a provision of law requires retention of a check, that requirement is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with paragraph (a).(f) A record retained as an electronic record in accordance with paragraph (a) satisfies a provision of law requiring a person to retain a record for evidentiary, audit, or similar purposes, unless a provision of law enacted after July 1, 2000, specifically prohibits the use of an electronic record for the specified purpose.(g) This section does not preclude a governmental agency of this state from specifying additional requirements for the retention of a record subject to the agency's jurisdiction. (b) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual's own behalf or for another person, including by an interaction in which the individual performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance. (c) The terms of the contract are determined by the substantive law applicable to the contract. 1. Is addressed properly or otherwise directed properly to an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record.2. Is in a form capable of being processed by that system.3. Enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient which is under the control of the recipient.(b) Unless otherwise agreed between a sender and the recipient, an electronic record is received when the record enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and is in a form capable of being processed by that system.(c) Paragraph (b) applies even if the place the information processing system is located is different from the place the electronic record is deemed to be received under paragraph (d).(d) Unless otherwise expressly provided in the electronic record or agreed between the sender and the recipient, an electronic record is deemed to be sent from the sender's place of business and to be received at the recipient's place of business. For purposes of this paragraph, the following rules apply:1. If the sender or recipient has more than one place of business, the place of business of that person is the place having the closest relationship to the underlying transaction.2. If the sender or the recipient does not have a place of business, the place of business is the sender's or recipient's residence, as the case may be.(e) An electronic record is received under paragraph (b) even if no individual is aware of its receipt.(f) Receipt of an electronic acknowledgment from an information processing system described in paragraph (b) establishes that a record was received but, by itself, does not establish that the content sent corresponds to the content received.(g) If a person is aware that an electronic record purportedly sent under paragraph (a), or purportedly received under paragraph (b), was not actually sent or received, the legal effect of the sending or receipt is determined by other applicable provisions of law. Except to the extent permitted by the other provisions of law, the requirements of this paragraph may not be varied by agreement.(h) An automated transaction does not establish the acceptability of an electronic record for recording purposes. 1. Would be a note under chapter 673, Florida Statutes, or a document under chapter 677, Florida Statutes, if the electronic record were in writing.2. The issuer of the electronic record expressly has agreed is a transferable record.(b) A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred.(c) A system satisfies paragraph (b), and a person is deemed to have control of a transferable record, if the transferable record is created, stored, and assigned in such a manner that:1. A single authoritative copy of the transferable record exists which is unique, identifiable, and, except as otherwise provided in subparagraphs 4., 5., and 6., unalterable.2. The authoritative copy identifies the person asserting control as the person to which the transferable record was issued or, if the authoritative copy indicates that the transferable record has been transferred, the person to which the transferable record was most recently transferred.3. The authoritative copy is communicated to and maintained by the person asserting control or its designated custodian.4. Copies or revisions that add or change an identified assignee of the authoritative copy can be made only with the consent of the person asserting control.5. Each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy.6. Any revision of the authoritative copy is readily identifiable as authorized or unauthorized.(d) Except as otherwise agreed, a person having control of a transferable record is the holder, as defined in s. 671.201(20), of the transferable record and has the same rights and defenses as a holder of an equivalent record or writing under the Uniform Commercial Code, including, if the applicable statutory requirements under s. 673.3021, s. 677.501, or s. 679.308 are satisfied, the rights and defenses of a holder in due course, a holder to which a negotiable document of title has been duly negotiated, or a purchaser, respectively. Delivery, possession, and indorsement are not required to obtain or exercise any of the rights under this paragraph.(e) Except as otherwise agreed, an obligor under a transferable record has the same rights and defenses as an equivalent obligor under equivalent records or writings under the Uniform Commercial Code.(f) If requested by a person against which enforcement is sought, the person seeking to enforce the transferable record shall provide reasonable proof that the person is in control of the transferable record. Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record. (b) To the extent that a governmental agency uses electronic records and electronic signatures under paragraph (a), the state technology office, in consultation with the governmental agency, giving due consideration to security, may specify: 1. The manner and format in which the electronic records must be created, generated, sent, communicated, received, and stored and the systems established for those purposes.2. If electronic records must be signed by electronic means, the type of electronic signature required, the manner and format in which the electronic signature must be affixed to the electronic record, and the identity of, or criteria that must be met by, any third party used by a person filing a document to facilitate the process.3. Control processes and procedures as appropriate to ensure adequate preservation, disposition, integrity, security, confidentiality, and auditability of electronic records.4. Any other required attributes for electronic records which are specified for corresponding nonelectronic records or reasonably necessary under the circumstances.(c) Except as otherwise provided in paragraph (12)(f), this section does not require a governmental agency of this state to use or permit the use of electronic records or electronic signatures.(d) Service charges and fees otherwise established by law applicable to the filing of nonelectronic records shall apply in kind to the filing of electronic records. B) Notarizing Wills 732.502 Execution of wills.--Every will must be in writing and executed as follows: (1)(a) Testator's signature.-- i) The testator must sign the will at the end; or (b) Witnesses.--The testator's:
(c) Witnesses' signatures.--The attesting witnesses must sign the will in the presence of the testator and in the presence of each other. (2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the testator was at the time of execution. A will in the testator's handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.(3) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law. (4) A codicil shall be executed with the same formalities as a will. 5 Fla. Stat. 732.502, pg. 827 (1999) History.--s. 1, ch. 74-106; s. 21, ch. 75-220; s. 11, ch. 77-87; s. 961, ch. 97-102. Note.--Created from former s. 731.07. 732.503 Self-proof
of will.--A will or codicil executed in
conformity with s.732.502(1)
and (2) may be made self-proved at the time of its
execution or at any subsequent date by the
acknowledgment of it
by the testator
and the affidavits of the witnesses, each made before
an officer authorized to administer oaths and
evidenced by the officer's certificate attached to or
following the will, in substantially
the
following form: We, _____, _____, and _____ the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, having been sworn, declared to the undersigned officer that the testator, in the presence of witnesses, signed the instrument as the testator's last will (codicil), that the testator (signed) (or directed another to sign for him or her), and that each of the witnesses, in the presence of the testator and in the presence of each other, signed the will as a witness. (Testator) (Witness) (Witness) Subscribed and sworn to before me by _____, the testator who is personally known to me or who has produced (type of identification) as identification, and by _____, a witness who is personally known to me or who has produced (type of identification) as identification, and by _____, a witness who is personally known to me or who has produced (type of identification) as identification, on _____, (year) . (Signature of Notary Public) (Print, type, or stamp commissioned name of Notary Public) 5 Fla. Stat. 732.503, pgs. 827-828 (1999) History.--s. 1, ch. 74-106; s. 21, ch. 75-220; s. 12, ch. 77-87; s. 8, ch. 93-62; s. 962, ch. 97-102; s. 18, ch. 98-246. Note.--Created from former s. 731.071. It is not your responsibility, nor do you have the authority, to give legal advice about the proper method for executing a will. However, you should not notarize a will if the two witnesses are not present to sign the will.
Testator responds "I do".
Testator responds "Yes".
Testator responds "I do".
Witnesses respond "Yes".
Notary completes the jurat below the affidavit. Your certificate must follow the will or be attached to I in substantially the following form. If you attach your certificate to the will, be sure that the will is clearly identified on your certificate. The following wording is recommended and should be placed above or below the notary certificate: This certificate is attached to (exact name of will) Executed by (name of testator) on (date) STATE OF FLORIDA COUNTY OF _________________ We, (testator), (witness), and (witness) the testator and the wit- nesses, respectively, whose names are signed to the attached or foregoing instrument, having been sworn, declared to the under- signed officer that the testator, in the presence of witnesses, signed the instrument as his/her last will (codicil), the he/she (signed) (or directed another to sign for him/her), and that each of the witnesses, in the presence of the testator and in the presence of each other, signed the will as a witness. Signature of testator Signature of Witness Signature of Witness
Subscribed and sworn before me by (testator), the testator who is personally known to me or who has produced (type of identification) as identification, and by (witness), a witness who is personally known to me or who has produced (type of identification) as identification, and (witness) a witness who is personally known to me or who has produced (type of identification) as identification, on (date), (year). (Seal) Signature of Notary Public (Name of notary public, printed, typed or stamped) C) Refusing to NotarizeFlorida law actually requires notaries to refuse in some situations. In other situations, notaries either should or may refuse to notarize. Most of the situations in which notaries must refuse are set forth in sections 117.05 and 117.107, Florida Statutes, and relate primarily to taking acknowledgments and administering oaths. Other prohibitions, not discussed here, may apply to less common types of notarial acts, such as attesting to photocopies and performing marriage ceremonies. The most common situations with statutory prohibitions occur when:
There are other precautionary reasons for which a notary should refuse to notarize even though a specific prohibition may not appear in Chapter 117. These situations occur when:
How to Refuse A refusal to notarize may be viewed as an inconvenience to the signer or may be misinterpreted as unlawful discrimination. Therefore, notaries should be careful to refuse in a tactful manner. Tactfulness should not be a problem when the refusal is based on one of the statutory prohibitions, such as when the document is incomplete. The notary should explain that the law prohibits notarizing in that situation. However, the situations in which a notary should refuse for precautionary reasons may be more difficult to explain. For example, suppose a notary suspects that the signer is being coerced or that the transaction may be illegal. In such situations, it may be best for notaries to simply explain that they are not comfortable with notarizing that document. No further explanation is necessary.Another good approach is for the notary to state that he or she is not familiar with the type of document involved. It is best not to be drawn into a debate regarding the refusal. Restricting Services Some people have taken the position that a notary public may not refuse any legitimate request for notary services. An argument could be made that because notaries are public officers, they have a duty to be reasonably available to the general public. This issue often arises in an employment context when a notary's employer sets parameters on notarizations that may be performed by employees within the scope of their employment. Some employers advertise notary services as a benefit for their customers. Other employers prefer to have a notary public in the office solely for notarizing signatures of the company's personnel. Employers may have good reasons for limiting the notary services that may be performed by their employees. First, most employees have assigned duties for their position, and performing notarizations is generally not their primary focus. An employer may not want employees to neglect their regular duties to perform notarizations unrelated to the business. Second, an employer may want to restrict notarizations because of the risk of liability resulting from a notary's negligence committed during the scope of employment. Florida law now holds an employer liable for such negligence. The Governor's Notary Section has considered the issue of whether a notary may refuse to notarize because of policies established by an employer; for example, in the case of a bank. A notary should never exercise his or her authority in a discriminatory manner. However, it is the opinion of this office that limiting bank employees to notarizing only for bank customers is not considered unlawful discrimination. Most notaries are employed in businesses or government agencies which conduct business beyond the provision of notary services. These entities are not required to permit their employees to neglect their duties of employment so as to be available to the general public for notary services. Conclusion Refusing to notarize may be required by Florida law or may be an option the notary public chooses in certain situations. Every notary should have a thorough understanding of the notary laws and should exercise good judgment when making decisions about whether to notarize. D) Unauthorized Practice of LawThe Florida Constitution gives the Supreme Court of Florida the exclusive authority to regulate the practice of law. Included in this regulation is the prohibition against the unlicensed or unauthorized practice of law (UPL). The reason for prohibiting the unlicensed practice of law is to protect the public from incompetent, unethical, or irresponsible representation it is not done to protect lawyers. The Florida Bar has been charged by the Court with the responsibility of investigating matters pertaining to the unlicensed practice of law and the prosecution of alleged offenders. The Bar does not actively seek instances of UPL; rather, it investigates written complaints received from individuals. Once a complaint is received, a preliminary investigation into the matter is conducted by staff UPL attorneys, and if the allegations have merit, the case is referred directly to a local circuit committee for thorough investigation. These committees are comprised of attorneys and members of the public who volunteer to investigate these matters for The Bar. Each of the twenty judicial circuits in Florida has at least one circuit committee. The circuit committees have several options available to resolve a UPL complaint. They may close the case if there are insufficient grounds to support the allegations. They may recommend that the individual accept "a cease and desist affidavit". By signing such an affidavit, the individual, without admitting any wrongdoing, acknowledges that the conduct set forth in the affidavit constitutes the unlicensed practice of law and agrees to refrain from the conduct until licensed to practice law in Florida. The committees may also recommend litigation. Litigation is initiated with the filing of a petition with the Supreme Court of Florida seeking a court order prohibiting the non-lawyer from engaging in the practice of law. If the order is violated, The Bar may seek indirect criminal contempt against the individual which could result in a jail sentence. Engaging in the unlicensed practice of law is also a misdemeanor in Florida. Criminal complaints alleging UPL are handled by the State Attorney's Office. The penalties include a fine and/or a jail sentence. Additionally, if a notary public is found to be engaging in the unauthorized practice of law, the Governor may suspend that notary from office by executive order. Now, exactly what services can you provide without engaging in the unlicensed practice of law? Generally speaking, a non-lawyer may only sell legal forms and then type those forms which have been completed in writing by the customer. As an example, you could sell a will form to an individual. The customer would have to fill in the blanks for the factual information customizing the will to his or her own needs. You can have no oral communication with the customer regarding how the form should be completed, and you may not correct mistakes. You may simply type the information written down by the customer. The Supreme Court of Florida has approved several forms for use by individuals or by attorneys. These forms pertain to matters of family law, landlord-tenant law, and certain residential leases, and allow the notary to provide additional, but limited, assistance. When using one of the forms approved by the Supreme Court, you may engage in limited oral communication with the customer to elicit the factual information that goes in the blanks on the form. For example, if using the form for a simplified dissolution of marriage, you may ask for the name of the husband and wife, what county they live in, when and where they got married, and whether the wife wants her former name back, and then complete the form accordingly. But, under no circumstances may you give legal advice about possible remedies or courses of action. Notaries are often asked to provide assistance in matters concerning bankruptcy and immigration. There are no Supreme Court approved forms for these legal actions as they are governed by specific federal laws. As in other matters, a non-lawyer may only sell forms and type those forms with information completed in writing by the customer. There are additional requirements and restrictions in the bankruptcy area, and you should consult the federal laws before attempting to complete any of these forms. Of course, you are prohibited from counseling your customer about appropriate legal action. Not only can a non-lawyer run into problems when assisting an individual in completing forms, the non-lawyer also runs afoul of the unlicensed practice of law if the non-lawyer gives legal advice. This is especially problematic where the customer is relying on the non- lawyer for proper advice and guidance. Generally, the Court has held that, if the advice affects an individual's important legal rights, it will probably be viewed as legal advice. For example, your friend needs to authorize another member of her family to provide care for her child while she is temporarily out of the country. Because you are a notary public, she asks you to advise her. So, you assist her in preparing and wording a power of attorney. Unfortunately, you just engaged in the unlicensed practice of law and may be subject to one or all of the sanctions previously discussed. Representation of an individual in court proceedings obviously constitutes the practice of law. However, what about matters that are related to the court proceeding, but are not taking place in court? The question of whether a non-lawyer may take a deposition was recently decided by a Florida appellate court. There, the court held that taking a deposition constitutes the practice of law, and therefore, a non-lawyer may not question witnesses in a deposition. In most foreign countries, a notary public is an attorney. Some individuals use their notary public commission as a means to advertise and mislead individuals into believing that they may act as an attorney. For this reason, the notary law provides that a notary public who is not an attorney and advertises his or her services in a language other than English must include a notice in the advertisement which states, "I am not an attorney licensed to practice law in the State of Florida, and I may not give legal advice or accept fees for legal advice." The law also prohibits the literal translation of the term notary public into a language other than English in an advertisement for notary services. As a notary public, you are held to a higher standard than other individuals because you are a public officer holding a position of trust. This trust is violated if improper legal advice and services are provided. The public is harmed and notaries are held in disrespect. By consistently observing the restrictions placed upon you as a non- lawyer notary public, abuses can be prevented and the public can be spared unnecessary expense and hardship. And, you will not subject yourself to court action, executive suspension, or criminal penalties.
E) Financial Interest What constitutes financial interest? There is no exact answer to this question. Although the term is not defined in the notary laws, there are some clear examples of financial interest. For instance, when a notary receives a sales commission on the transaction at hand (the sale of an automobile, an insurance policy, real estate, etc.), he or she would be prohibited from notarizing the signatures those persons involved. Additionally, the owner of a business should not notarize signatures on documents pertaining to his business transactions. The law exempts a salaried employee (if not related to the docu- ment signer) from this prohibitive provision of the law. However, what about a notary whose spouse owns the business and he or she receives no salary? Aside from the financial interest issue, the notary is prohibited from notarizing his or her spouse's signature. Experts on notary issues agree that the spouse of the business owner would probably have a financial interest in the transactions of that business, and therefore, should not notarize in these instances. An attorney is exempt from this provision of the law and is permitted to notarize his client's signature on a document that he has prepared, if he is serving as the attorney-of-record and is only receiving a fee for his legal services or his notary services. However, if the attorney were also a party to the transaction, or had an interest, such as being named the executor or administrator of an estate, he should not notarize his client's signature on such documents. When you are unsure whether you are a party to or have a financial interest in a particular transaction, it is always safer to err on the side of caution and decline to notarize the signature. Keep in mind that, as a notary, you should be a disinterested third party who, if called upon to testify about the transaction, would be completely detached from all parties and appear unbiased in your testimony. F) Advertising your Notary ServicesIf you are interested in using your notary commission to earn extra income, advertising your services may be a way to build or increase your business. Before you leap into 60-second radio commercials or full-page ads in your local newspaper, let's discuss some important aspects of advertising. First, you should consult the notary law. Subsections 117.05(10) & (11), Florida Statutes, must be your guide if you are not an attorney and are advertising your notary services in a foreign language. Your advertisement must contain the following notice in English and in the language used for the advertisement: "I am not an attorney licensed to practice law in the State of Florida, and I may not give legal advice or accept fees for legal advice." You are also prohibited from translating the term "Notary Public" into a language other than English. These requirements apply to advertisements via radio, television, signs, pamphlets, newspaper, or other written communication, with the exception of a single desk plaque. Additionally, some notaries like to imprint their notary seal on written advertisements. We advise against this. The notary law requires that a notary seal must be affixed to all notarized documents. §117.107(3)(a), Fla. Stat. The law does not authorize any other use of the notary seal. Next, decide what services you will provide. Are you willing to perform marriage ceremonies? Some notaries prefer not to solemnize the rites of matrimony for religious reasons. Would you be willing to travel to a hospital, nursing home, office, or private residence to perform your duties? If so, you may need to set specific hours that are convenient to you and the public. You should also be careful that you do not advertise services that you, as a notary public, are not authorized to perform. For example, do not advertise that you provide certified translations or signature guarantees, judge contests or certify contest results, or "notarize" photographs or collectable memorabilia, etc. These are not authorized duties of a Florida notary public, and to perform such duties in your capacity as a notary public s unlawful. Additionally, unless you are a licensed attorney, you may not give legal advice or prepare legal documents, such as those pertaining to immigration, trusts, etc. When deciding on the types of services you will provide, you should also consider establishing a schedule of fees. This will provide consistency and demonstrate credibility with your customers, and avoid the appearance of discrimination. Remember, though, you cannot exceed the maximum fees allowed by law up to $10 per notarial act or up to $20 for solemnizing marriage. If you are asked to travel 25 miles to a hospital in a neighboring town, are you willing to do it? If so, you may want to charge your customary fee for the notarization and a small fee for travel expense. In performing a marriage ceremony, will you provide additional services, such as flowers, photographer, wedding cake, etc.? If so, you have a right to be compensated for these extras. However, make sure that your customer understands your fees prior to performing the services. We recommend that you always give an itemized receipt for your services. Receipts also provide you with reliable records for income tax preparation. Advertise only those services that you are willing to perform, and be careful that you do not discriminate between customers. If you advertise your services, you should be willing to provide those services to everyone. Additionally, think about the medium to use for your advertising. What will reach the most people for the money you have to spend? Besides advertisements in newspapers, on radio and television, and window or street signs, you may consider advertising in the news- letter of your church or civic organization, putting up a poster in your community supermarket (with the permission of management), posting a sign by your office copy machine, or passing out your own business cards to people you come in contact with. Some companies specialize in direct mail advertising in conjunction with other advertisers for a nominal cost. A long-lasting advertising medium, such as your telephone yellow pages, may also be an option. Whatever medium you use, spend some time refining your advertisement. Remember, you want to catch the attention of your reader or listener. If you post a sign in your yard, be sure to check with your local government to find out what ordinances may govern your advertising. Some local governments would not consider a small sign displayed tastefully in your front yard as advertising a business in a residential area. Other local governments, though, have ordinances that strictly prohibit such displays. In addition, there may be local laws that would require you to obtain an occupational license. Finally, you should know that a notary public and a Justice of the Peace are not the same. Florida has not had Justices of the Peace since January 2, 1973, when the office was abolished by law. There- fore, you should not advertise your services as a Justice of the Peace. This may be considered deceptive advertising. The Economic Crimes Division of the Florida Department of Legal Affairs (the Attorney General's Office strongly warns notaries against deceptive, false or misleading advertising. Advertising can be an effective way of making your services known as a notary public. Before you advertise, though, you should investigate and think through all your options to make sure that you are obeying the law and that your efforts will be profitable. G) Notarizing and Acting as a WitnessA notary by definition is an objective witness to the execution of important documents. A Florida court has held that "there is nothing to prevent a notary from also being a witness". (Walker vs. City of Jacksonville, 260 So.2d 52, 1978). However, you must be sure that the document does not call for the witnesses signatures to be notarized. If it does, you must defer to another notary if you are to be the witness, as it is against Florida Criminal Law to notarize your own signature.
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