What Is a Notarized Document?
In a general sense, a notarized document is paper evidence that a notary has witnessed the signing of a contract or other legal document. The process of notarization serves as a verification that a party genuinely signed the document under the proper mental capacity and without any undue influence. In addition to contracts, there are many other uses for notarized documents. Wills, deeds and powers of attorney are all examples of documents that can be notarized.
To notarize a document, a notary public must witness the signing of the document. This may be done by the client visiting the notary’s office or the notary may travel to a different location in order to witness the client signing the document. There is often a fee associated with notarizing a document. The notary may also require proof of identity and may charge a small fee for certified copies if they are needed in the future.
The legal significance of notarization is that a notarized document is almost always presumed to be valid if it goes into evidence in a court case unless someone can present evidence to the contrary. For this reason , notarization is an important process that can help ensure the matters set forth in the document are honored in the future.
In some probate and guardianship cases, a question of whether a will was properly executed or whether a power of attorney has been properly signed and notarized is raised. For this reason, it is important for those involved with administering the estate of a person who has died or determining the need for guardianship for a person who has experienced mental decline to understand the rules regarding notarization.
How Notarization Works in Legal Matters
Notarization refers to the act of witnessing the signing of a document and then providing an official seal or stamp that indicates the principal is indeed the one who signed the document in question. In the state of Florida, "Notaries public have executed jurats in accordance with Chapter 117, Florida Statutes, for almost 500 years." A notarization lends a great deal of credibility to the document and many times serves as an important part of a legal proceeding. A fraudulent document may be contested if it appears that it was not notarized in accordance with the law. The role of a notary is to deter people from committing Fraud. The notary’s job does not stop there though. They are also required to consider the risk of fraud both at the time the document is signed as well as after it has been signed. A notary should use their own common sense to determine how much risk is present in each transaction they are responsible for. In the context of a guardianship proceeding, a certified copy of every deed, mortgage, lease, contract, discharge of mortgage, judgment, and other document executed by a guardian or in connection with any action or proceeding where such copy is directly relevant must be attached to any petition or pleading filed with the guardianship court in the state of Florida.
Legal Safeguards for Guardianship
In guardianships, the court typically requires certain types of documents to be filed with the court. Florida Statute 744.331 requires a petition for the appointment of a guardian to be filed. A petition must contain the following: a request for appointment of the guardian, the incapacity of the ward, the degree of incapacity of the ward, whether an attorney is requested; the suitability of the petitioner as guardian, and the suitability of a guardian advocate, if any. The petition must also be notarized. Guardianship lawyers call the foregoing the "bare-bones" or "bare-minimum" petition. It is a form-that with the addition of specific information is utilized for three of the four types of petitions-the exception being a guardian advocate (which is not a type of guardianship). Legal requirements vary from state to state, but in Florida, a "bare-bones" guardianship petition typically requires the following additional documents to be filed with the court: a verified inventory, verified initial plan, letters of guardianship, notice of rights to the ward, letters of guardianship, notice of rights to the ward, notice of rights to the incapacitated person, notice of rights, order appointing guardian, and a bill of rights. Other forms may be filed at different times within the context of a guardianship.
Does a Notarized Document Cover Guardianship?
Notarized documents alone are generally not enough to establish the existence of a guardianship or meet the requirements of a valid guardianship. Notarized documents require verification of review and approval by a court. A notarized document may be referred to as an affidavit, memorandum of agreement, or other documents requiring the notarization of signatures. While a notarized document may be sufficient to verify the signatures of those parties who do sign the document, a court often will require more than just a notarized document to establish the validity of a guardianship since a guardianship is a formal legal process usually sanctioned by the court.
A notarized document by itself may reveal that the named guardian has not filed a petition for guardianship to appoint a guardian or conservator for the person and/or their property. Unless the guardianship was established in a state other than Florida, the absence of a guardianship petition indicates that the guardianship is invalid. A notarized document may also be insufficient to provide the authorizing evidence required by a court to validate the terms of the document. A court may require a sworn testimony to validate that a particular act or thing must be done on behalf of the principal or to pursue a legal action against a third party. For example, a notarized document that merely provides a power of attorney for a principal must be supported by further evidence such as a court order authorizing the act of appointing a guardian and the exercise of that power. A notary may only verify that the injunction was actually signed by the affiant, thereby verifying only the authenticity of the signature. Further validation is required to support the authority to act on behalf of a principal.
State Guardianship Laws
Other factors may impact the acceptance of a notarized document in one state and not another. Each state has its own laws that govern the administration of Guardianships and do not always include all the same requirements. For example, generally, courts are required to review a potential Guardianship prior to assigning a Guardian. These pre-Guardianship investigations may or may not include a background check of the proposed fiduciary. Some states require that a fingerprint based criminal history background check be conducted. Other states do not have a specific requirement, but may allow the Court to request a criminal background check as part of the application process.
Most Guardianship laws in the united states require a social study or background check of a proposed Guardian prior to adjudicating a Guardianship appointment. If the proposed Guardian were a Florida resident and another state court found that the background check was insufficient, the second state may deny its acceptance of the document. For example , Florida may require a background check whereas the state of New York may not. The state of New York may consider that Florida’s background check provides adequate notice to its courts and not question the validity of Florida’s Guardianship Order. Another state, however, may not have the same interpretation. This variance proves problematic for the unwitting Guardian who will not know the differences until the attorney fees have been paid and the Notice of Hearing announced.
Background checks are not the only potential issue with specific state Guardianship laws. Some states have adopted their own language for witness requirements, modification petitions, or so forth. These variances can create a very confusing situation for a potential Guardian, especially when other requirements may appear to be satisfied. A Florida Power of Attorney may be deemed valid in the state of Georgia, but a Georgia Statutory Power of Attorney may not be considered sufficient in Florida. A notarized Power of Attorney that is considered valid in Georgia may not be valid in Florida.
The takaway? Make sure to have any Order that has been executed in another state reviewed by an attorney to determine if it is sufficient and valid in the state where the Guardianship will be administered.
Common Issues and Concerns
A common pitfall encountered by family lawyers when opposing guardianship is the use of notarized documents like wills, trusts, and sometimes even powers of attorney. The difficulty arises when the documents are submitted as evidence when required witnesses have not signed the documents—e.g., a party submits a trust showing only his signature and the notary.
Prior to July 1, 2013, the act of subscribing (signing) a will in front of a notary did not require the notary to obtain any additional witness signatures. Wills were valid after subscribing even when there were no additional witnesses. This practice was acknowledged in Haw. Rev. Stat. § 560:2-503 (2000), which governed the requirements of witnesses’ subscribing wills. However, effective July 1, 2013, the new Uniform Probate Code Act (Act 74) was passed into law. Pursuant to the Act, a will now requires the signatures of at least two witnesses who need not be disinterested (Haw. Rev. Stat. § 560:2-502 (a)(1)). The witnesses must subscribe the will after the testator has signed it, either in the presence of the testator or at the testator’s direction. Haw. Rev. Stat. § 560:2-502 (b). If the will includes the signature of the testator and both witnesses, then it is presumed to be properly executed. Haw. Part IV Plan § 104, No. 75b at 4.
If no witnesses have signed and the will was not signed in their presence or at their direction, then it is not presumed to be properly executed. But can the will still be admitted when the subscribing notary states in his or her certificate that the will was executed in accordance with the Hawaii Uniform Will Act? HRS § 560:2-504(d).
In my opinion, the statute does not address this scenario, and the court should bar the admission of the will, regardless of the notary’s certificate. The standard for admitting a document is by a preponderance of the evidence to establish it was executed properly in accordance with the statute. Pearsall v. Fritz, 37 Haw. 272, 280 (1945). The notary’s certificate stated nothing about the circumstances of the signing; it merely indicates that it was executed in accordance with the Will Act. That cannot be sufficient.
With regard to trusts, Hawaii, like other states, requires that a trust be executed by the settlor in writing and signed in the presence of at least one witness or attested by a notary public and dated. Haw. Rev. Stat. § 554B-11 (2007). In determining whether a document is a valid trust or not, the courts always have analyzed the statute and the requirements therein. No doubt other reasons may exist why a trust is not valid. Now, with the Act, will the addition of dignified language regarding the importance of a notary public in making a trust valid create an exception to requiring at least one witness to the trust?
The same rule should apply for a power of attorney (Haw. Rev. Stat. § 524B-102 (2000)), where the subscribing notary states in a jurat that the power of attorney was executed appearing to be in compliance with the statute.
Over the years, the most common pitfalls encountered when challenging the validity of these documents have been (1) using a will that had only one subscribing witness, or none at all, and (2) using a trust or power of attorney that was not executed by a subscribing witness. That should remain the case.
Tips for Legal Safeguarding
When it comes to guardianship documents, having an experienced lawyer review the form can be the difference between whether or not the form is accepted by the Court. Money is wasted when a poorly written or prepared document has to be re-done or needs further explanation. Immediately upon learning of a guardianship, call an attorney with the proper expertise so your rights are protected from the very beginning.
- Don’t sign unless notarized – Generally, if a document requires notarization, it doesn’t matter if the signee is physically in the presence of an attorney at the time of signing or a notary public. Any competent notary knows that a client can sign any document whereever she is, as long as she is signing voluntarily and understands the contents of the document she is signing. For example, it is common for a Probate Court to require a guardian’s bond to be notarized. As long as the bond is notarized, it doesn’t matter where the Notary is at the time. A notary can be found virtually anywhere these days, including online! Debevoise’s attorneys will travel to the Hospital, a rehabilitation facility, or the nursing home, or we can send a notary to the hospital if you can prove an emergency situation.
- Give notice to all interested parties – The Probate Code defines "interested parties" broadly. Any person or entity that could be affected by the action is an interested party. Generally, give notice to relatives, heirs, beneficiaries, creditors and hospitals if the petitioner is requesting a guardianship. In a conservatorship case, give notice to all beneficiaries of the conservator’s estate.
- Make sure the Petition is clear and not misleading – Sometimes assertions in the petition don’t tell the whole story. For example, if the petitioner has not been in contact with the proposed conservatee in years, there may have been a reason. Make sure the Petition sets out the reasons for the conservatorship and why there are no less restrictive alternatives available. Sometimes the more people find out about the petition, the more problems arise. It is better to disclose everything upfront and let the Court decide whether a Guardianship is necessary than to have judgment delayed by new issues that could have come to light earlier.
- If you think a Petition is necessary, file the petition promptly – The longer you wait to file a petition, the more problems there can be. For example, a medical emergency can arise leading to a financial loss. If the case drags on too long, the court may assume there is no longer an emergency and deny the petition.
Consultation with Legal Experts
Given the potential for contested guardianship proceedings or proceedings with potentially adverse impact on the family and the incapacitated individual, it is important to consult with an experienced probate litigator early in the process. Legal professionals can assist families in understanding the alternatives that may be available to guardianship, such as (i) durable powers of attorney; (ii) health care proxies; (iii) representative payee designations; and (iv) conservatorships . Because the way to prove incapacity and the extent to which powers should be granted to a petitioner vary by state, practitioners experienced in handling guardianship cases will best be able to advise clients on the appropriate procedures and rules to follow. In addition, legal professionals may be able to prepare and file the necessary documents.
