Personal Appearance
Requirement: “Except as provided in RCW 42.45.280, if a notarial act relates to a statement made in or a signature executed on a record, the individual making the statement or executing the signature shall appear personally before the notarial officer” (RCW 42.45.040).
“‘Appear personally’ means:
”(a) Being in the same physical location as another individual and close enough to see, hear, communicate with, and exchange tangible identification credentials with that individual; or
”(b) For remote notarial acts, being in a different physical location from another individual but able to see, hear, and communicate with that individual by means of communication technology” (WAC 308-30-020).
“All signers must be in your physical presence during notarization. This is called ‘personal appearance.’ You can’t notarize the signature of someone who contacts you only by mail, phone, or email” (website, “How to perform notary acts”).
“The physical presence rule applies to any signing party, even if they are personally known to the notary. This is also true for electronic notarizations of documents: the signing party or parties must be in the physical presence of the notary even though the documents will be on a computer or online” (NPG).
Identification
Requirement: In taking an acknowledgment and verification on oath or affirmation, and witnessing or attesting a signature, a notarial officer, including a Notary Public, must determine, from personal knowledge or satisfactory evidence, that the individual appearing before the Notary has the identity claimed (RCW 42.45.030[1], [2] and [3]).
Personal Knowledge: “A notarial officer has personal knowledge of the identity of an individual appearing before the officer if the individual is personally known to the officer through dealings sufficient to provide reasonable certainty that the individual has the identity claimed” (RCW 42.45.050[1]).
“Personal knowledge is generally considered the simplest method of identifying an individual. If you
personally know the signer, you do not need any additional identifying information. It may be difficult to identify the level of personal knowledge needed to validate an individual’s identity…. Generally, you can rely on personal knowledge when you have known the individual a long enough time that you would be willing to swear in court as to who the signer is” (NPG).
Satisfactory Evidence: “A notarial officer has satisfactory evidence of the identity of an individual appearing before the officer if the officer can identify the individual:
“(a) By means of:
“(i) A passport, driver’s license, or government-issued nondriver identification card, which is current or expired not more than three years before performance of the notarial act; or
“(ii) Another form of government identification issued to an individual, which is current or expired not more than three years before performance of the notarial act, contains the signature or a photograph of the individual, and is satisfactory to the officer; or
“(b) By a verification on oath or affirmation of a credible witness personally appearing before the officer and personally known to the officer and who provides satisfactory evidence of his or her identity as described in (a) of this subsection” (RCW 42.45.050[2]).
Additional Information or Credentials: “A notarial officer may require an individual to provide additional information or identification credentials necessary to assure the officer of the identity of the individual” (RCW 42.45.050[3]).
Refusal of Services
Specific Grounds: “A notarial officer has the authority to refuse to perform a notarial act if the officer is not satisfied that:
”(a) The individual executing the record is competent or has the capacity to execute the record; or
”(b) The individual’s signature is knowingly and voluntarily made” (RCW 42.45.060[1]).
“Another important function of the notary public is to identify that the person signing is doing so of their own free will. Being able to see and interact with the signer gives you the opportunity to confirm that the signing party intends to sign the documents in question, is competent to sign them, and is doing so voluntarily. Examples of situations where the signing party may not be competent, knowing, or signing
voluntarily include where the signing party:
”• Is signing under duress
”• Does not read and write the language of the documents being signed
”• Is intoxicated or under the influence of drugs
”• Is mentally infirm
”• Is underage
“If you have doubts about the competency, knowledge, and voluntariness of a signer, you may
ask questions and talk with the signer to get a better sense of their mental state. If you are not satisfied
that the signer is competent, knowing, or signing voluntarily, you may refuse to perform the
notarization” (NPG).
Minors: Effective July 25, 2021, a new statute authorizes a mental health advance directive to be acknowledged before a Notary as one of two witnessing options. The notarization provision is noteworthy for Washington Notaries because the new law states that “[a] person who is at least 13 years of age but under the age of majority is considered to have capacity for the purpose of executing a mental health advance directive if the person is able to demonstrate that they are capable of making informed decisions related to behavioral health care” (RCW 71.32.040). Thus, a Notary who notarizes directive for a minor age 13 or older must make a determination that the minor is capable of making informed decisions related to their care. If a Notary is not satisfied that the minor demonstrates this capacity, the Notary may refuse the notarization.
General Grounds: “A notarial officer has the authority to refuse to perform a notarial act unless refusal is prohibited by law other than this chapter” (RCW 42.45.060[2]).
Signature by Proxy
“Except as otherwise provided in RCW 64.08.100, if an individual is physically unable to sign a record, the individual may direct an individual other than the notarial officer to sign the individual’s name on the record. The notarial officer shall insert ‘signature affixed by (name of other individual) at the direction of (name of individual)’ or words of similar import” (RCW 42.45.070).
“Any person who is otherwise competent but is physically unable to sign his or her name or make a mark may make an acknowledgment authorized under this chapter by orally directing the notary public or other authorized officer taking the acknowledgment to sign the person’s name on his or her behalf. In taking an acknowledgment under this section, the notary public or other authorized officer shall, in addition to stating his or her name and place of residence, state that the signature in the acknowledgment was obtained under the authority of this section” (RCW 64.08.100).
Disqualifying Interest
Personal, Spouse or Partner: “(a) A notarial officer may not perform a notarial act with respect to a record to which the officer or the officer’s spouse or domestic partner is a party, or in which any of the above have a direct beneficial interest.
“(b) A notarial officer may not notarize the notarial officer’s own signature.
“(c) A notarial act performed in violation of this subsection (2) is voidable” (RCW 42.45.020[2]).
“While not expressly prohibited by chapter 42.45 RCW, it is also generally inadvisable for a notary to notarize a document for extended family members. A notary that performs a notarial act for a family member may be seen as having a conflict of interest in the transaction, which could call the notarial act into question” (NPG).
Unauthorized Practice of Law
“(1) A commission as a notary public does not authorize an individual to:
“(a) Assist persons in drafting legal records, give legal advice, or otherwise practice law;
“(b) Act as an immigration consultant or an expert on immigration matters;
“(c) Represent a person in a judicial or administrative proceeding relating to immigration to the United States, United States citizenship, or related matters;
“(d) Receive compensation for performing any of the activities listed in this subsection” (RCW 42.45.230[1]).
“A notary public, other than an attorney licensed to practice law in this state or a limited license legal technician acting within the scope of his or her license, may not assist another person in selecting the appropriate certificate required by RCW 42.45.130” (RCW 42.45.230[4]).
“A nonattorney notary may not assist another person in drafting, completing, selecting, or understanding a document or transaction requiring a notarial act. This does not preclude a notary who is duly qualified in a particular profession from giving advice relating to matters in that professional field” (WAC 308-30-240[2]).
Advice Regarding Notarial Certificates: “It is important that a notary public who is not a licensed attorney should avoid making recommendations about adding certificates or changing substantive language in a notarial certificate because this may constitute legal advice” (NPG).
Immigration Practices
General Prohibition: “Persons, other than those licensed to practice law in this state or otherwise permitted to practice law or represent others under federal law in an immigration matter, are prohibited from engaging in the practice of law in an immigration matter for compensation” (RCW 19.154.060[1]).
Specific Prohibitions: “Persons, other than those licensed to practice law in this state or otherwise permitted to practice law or represent others under federal law in an immigration matter, are prohibited from engaging in the following acts or practices, for compensation:
“(a) Advising or assisting another person in determining the person’s legal or illegal status for the purpose of an immigration matter;
“(b) Selecting or assisting another in selecting, or advising another as to his or her answers on, a government agency form or document in an immigration matter;
“(c) Selecting or assisting another in selecting, or advising another in selecting, a benefit, visa, or program to apply for in an immigration matter;
“(d) Soliciting to prepare documents for, or otherwise representing the interests of, another in a judicial or administrative proceeding in an immigration matter;
“(e) Explaining, advising, or otherwise interpreting the meaning or intent of a question on a government agency form in an immigration matter;
“(f) Charging a fee for referring another to a person licensed to practice law;
“(g) Selecting, drafting, or completing legal documents affecting the legal rights of another in an immigration matter” (RCW 19.154.060[2]).
Immigration: “Persons, other than those holding an active license to practice law issued by the Washington state bar association or otherwise permitted to practice law or represent others under federal law in an immigration matter, are prohibited from engaging in the following acts or practices, regardless of whether compensation is sought:
“(a) Representing, either orally or in any document, letterhead, advertisement, stationery, business card, web site, or other comparable written material, that he or she is a notario publico, notario, immigration assistant, immigration consultant, immigration specialist, or using any other designation or title, in any language, that conveys or implies that he or she possesses professional legal skills in the area of immigration law;
“(b) Representing, in any language, either orally or in any document, letterhead, advertisement, stationery, business card, web site, or other comparable written material, that he or she can or is willing to provide services in an immigration matter, if such services would constitute the practice of law….” (RCW 19.154.060[3]).
“In addition to complying with the prohibitions of subsections (1) through (3) of this section, persons licensed as a notary public under chapter 42.45 RCW who do not hold an active license to practice law issued by the Washington state bar association shall not use the term notario publico, notario, immigration assistant, immigration consultant, immigration specialist, or any other designation or title, in any language, that conveys or implies that he or she possesses professional legal skills in the areas of immigration law, when advertising notary public services in the conduct of their business. A violation of any provision of this chapter by a person licensed as a notary public under chapter 42.45 RCW shall constitute unprofessional conduct under the uniform regulation of business and professions act, chapter 18.235 RCW” (RCW 19.154.060[5]).
Exceptions: “(a) The prohibitions of subsections (1) through (3) of [RCW 19.154.060] shall not apply to the activities of nonlawyer assistants acting under the supervision of a person holding an active license to practice law issued by the Washington state bar association or otherwise permitted to practice law or represent others under federal law in an immigration matter.
”(b) This section does not prohibit a person from offering translation services, regardless of whether compensation is sought. Translating words contained on a government form from English to another language and translating a person’s words from another language to English does not constitute the unauthorized practice of law” (RCW 19.154.060[4]).
Court Reporting Services
“A commission as a notary public does not authorize an individual to…[p]rovide court reporting services” (RCW 42.45.230[1][e]).
False or Deceptive Advertising
General Prohibition: “A notary public may not engage in false or deceptive advertising” (RCW 42.45.230[2]).
Notario Publico: “A notary public, other than an attorney licensed to practice law in this state, or a Washington-licensed limited license legal technician acting within the scope of his or her license, may not use the term ‘notario’ or ‘notario publico’” (RCW 42.45.230[3]).
Prohibited Representation: “A notary public, other than an attorney licensed to practice law in this state, or a Washington-licensed limited license legal technician acting within the scope of his or her license, may not advertise or represent that the notary public may assist persons in drafting legal records, give legal advice, or otherwise practice law” (RCW 42.45.230[5]).
Disclaimer: “If a notary public who is not an attorney licensed to practice law in this state, or a Washington-licensed limited license legal technician acting within the scope of his or her license, in any manner advertises or represents that the notary public offers notarial services, whether orally or in a record, including broadcast media, print media, and the internet, the notary public shall include the following statement, or an alternate statement authorized or required by the director, in the advertisement or representation, prominently and in each language used in the advertisement or representation: “I am not an attorney licensed to practice law in this state. I am not allowed to draft legal records, give advice on legal matters, including immigration, or charge a fee for those activities.” If the form of advertisement or representation is not broadcast media, print media, or the internet and does not permit inclusion of the statement required by this subsection because of size, it must be displayed prominently or provided at the place of performance of the notarial act before the notarial act is performed” (RCW 42.45.230[5]).
Foreign-Language Documents
There is nothing in state law that forbids a notary public from notarizing a document written in a
foreign language” (NPG).
“A notary is generally not responsible for confirming the contents of a document (outside of certifying a copy, but that has unique standards), however, they do need to make sure the correct notarial certificate is on the document. As of July 1, 2018, all notarial certificates must either be in English, or in dual-languages where one of the languages is English, so the notary should be able to identify the certificate on a document being notarized” (NPG).
Foreign-Language Signers
There is nothing in state law that forbids a notary public from notarizing … for a signing party that does not speak English” (NPG).
“A notary should also be aware of the inherent additional difficulty associated with confirming the identity of a signing party when they do not share a common language. Speaking different languages can make it difficult for a notary to properly identify the signing party and what is being asked of them. If the notary has access to a translator that they can rely on, it can help to alleviate this risk” (NPG).
Withholding Documents and Copies
“Except as otherwise allowed by law, a notary public may not withhold access to or possession of an original record provided by a person that seeks performance of a notarial act by the notary public. A notary public may not maintain copies or electronic images of documents notarized unless the copies or images are maintained by an attorney or Washington-licensed limited license legal technician acting within his or her scope of practice for the performance of legal services or for other services performed for the client and the copies or images are not maintained solely as part of the notary transaction” (RCW 42.45.230[6]).
Keeping Documents
“Should I keep copies of the documents that I notarize for my own records? — No. RCW 42.45.230(6) states that a notary public may not keep copies of documents that they notarize, unless they are a licensed attorney or other legal professionals as specified in the law. By keeping a notarial journal that meets the requirements of RCW 42.45.180 and WAC 308-30-200, a notary should have sufficient record of their notarial acts” (NPG).
Testimonials
“A notary may not endorse or promote any service, contest, or other offering if the notary’s seal or title is used in the endorsement or promotional statement” (WAC 308-30-230).
I-9, Certificate of Life Forms
“Can I notarize I-9 employment forms, certificate of life forms, or other specific forms? — The I-9 employment form asks for a signature from for the U.S. Citizenship and Immigration Services an individual as a business representative, not a notary. Because of this, an I-9 form does not need to be notarized. Certificate of life forms, which generally ask for signature by a public official to confirm that an individual is alive to receive pension benefits, generally may be notarized by a notary public. Washington State allows a notary public to certify that an event has occurred or an act has been performed and this has been interpreted to include verifying that an individual appeared before the notary on a specific date while alive. As always, please check with your specific clients and/or other appropriate authorities to confirm whether a specific form requires notarization” (NPG)