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Notary Public
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A notary public (or notary or public
notary) in the common law world is a public officer constituted by
law to serve the public in non-contentious matters usually concerned
with estates, deeds, powers-of-attorney, and foreign and international
business. A notary's main functions are to administer oaths and
affirmations, take affidavits and statutory declarations, witness and
authenticate the execution of certain classes of documents, take
acknowledgments of deeds and other conveyances, protest notes and bills
of exchange, provide notice of foreign drafts, prepare marine or ship's
protests in cases of damage, provide exemplifications and notarial
copies, and perform certain other official acts depending on the
jurisdiction. Any such act is known as a notarization. The term notary
public only refers to common-law notaries and should not be confused
with civil-law notaries.
With the exceptions of Louisiana, Puerto Rico, Quebec, whose private law
is based on civil law, and British Columbia, whose notarial tradition
stems from scrivener notary practice, a notary public in the rest of the
United States and most of Canada has powers that are far more limited
than those of civil-law or other common-law notaries, both of whom are
qualified lawyers admitted to the bar: such notaries may be referred to
as notaries-at-law or lawyer notaries. Therefore, at common law,
notarial service is distinct from the practice of law, and giving legal
advice and preparing legal instruments is forbidden to lay notaries such
as those appointed throughout most of the United States of America
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Information about Notary Public on individual countries
Australia
In all Australian States and Territories (except Queensland) notaries
public are appointed by the Supreme Court of the relevant State or
Territory. Very few have been appointed as a notary for more than one
State or Territory.
Queensland, like New Zealand, continues the practice of appointment by
the Archbishop of Canterbury acting through the Master of the Faculties.
Most Australian notaries are lawyers, but the overall number of lawyers
who choose to become a notary is relatively low. For example, in South
Australia (a State with a population of 1.5 million), of the over 2,500
lawyers in that state only about 100 are also notaries and most of those
do not actively practice as such. In Melbourne, Victoria, in 2002 there
were only 66 notaries for a city with a population of 3.5 million and
only 90 for the entire state. Compare this with the United States where
it has been estimated that there are nearly 5 million notaries for a
nation with a population of 296 million.
As Justice Debelle of the Supreme Court of South Australia said in the
case of In The Matter of an Application by Marilyn Reys Bos to be a
Public Notary [2003] SASC 320, delivered 12 September 2003,[5] in
refusing the application by a non-lawyer for appointment as a notary:
As a general rule, an applicant [for appointment as a notary] should be
a legal practitioner of several years standing at least. Even a cursory
perusal of texts on the duties and functions of a public notary
demonstrates that a number of those functions and duties require at the
very least a sound working knowledge of Australian law and commercial
practice. In other words, the preparation of a notarial act plainly
requires a sound knowledge of law and practice in Australia especially
of the due preparation and execution of commercial and contractual
instruments. It is essential that notaries in this State have a
sufficient level of training, qualification and status to enable them
efficiently and effectively to discharge the functions of the office.
Historically there have been some very rare examples of patent attorneys
or accountants being appointed, but that now seems to have ceased.
However, there are three significant differences between notaries and
other lawyers.
the duty of a notary is to the transaction as a whole, and not just to
one of the parties. In certain circumstances a notary may act for both
parties to a transaction as long as there is no conflict between them,
and in such cases it his or her duty is to ensure that the transaction
that they conclude is fair to both sides.
a notary will often need to place and complete a special clause onto or
attach a special page (known as an eschatocol) to a document in order to
make it valid for use overseas.
In the case of some documents which are to be used in some foreign
countries it may also be necessary to obtain another certificate known
either as an "authentication" or an "apostille" (see above) (depending
on the relevant foreign country) from the Department of Foreign Affairs
and Trade.
a notary identifies himself or herself on documents by the use of his or
her individual seal. Such seals have historical origins and are regarded
by most other countries as of great importance for establishing the
authenticity of a document.
Their principal duties include:
1.attestation of documents and certification of their due execution for
use in Australia and internationally
2.preparation and certification of powers of attorney, wills, deeds,
contracts and other legal documents for use in Australia and
internationally
3.administering of oaths for use in Australia and internationally
4.witnessing affidavits, statutory declarations and other documents for
use in Australia and internationally
5.certification of copy documents for use Australia and internationally
6.exemplification of official documents for use internationally
7.noting and protesting of bills of exchange
8.preparation of ships' protests
9.providing certificates as to Australian law and legal practice
Although it was once usual for Australian notaries to use an embossed
seal with a red wafer, some now use a red inked stamp that contains the
notary's full name and the words "notary public". It is also common for
the seal or stamp to include the notary's chosen logo or symbol.
In South Australia and Scotland, it is acceptable for a notary to use
the letters "NP" after their name. Thus a South Australian notary may
have "John Smith LLB NP" or similar on his business card or letterhead.
Australian notaries do not hold "commissions" which can expire.
Generally, once appointed they are authorized to act as a notary for
life and can only be "struck off" the Roll of Notaries for proven
misconduct. In certain States, for example, New South Wales and
Victoria, they cease to be qualified to continue as a Notary once they
cease to hold a practising certificate as a legal practitioner. Even
judges, who do not hold practising certificates, are not eligible to
continue to practise as notaries.
All Australian jurisdictions also have Justices of the Peace (JP) or
Commissioners for Affidavits and other unqualified persons who are
qualified to take affidavits or statutory declarations and to certify
documents. However they can only do so if the relevant affidavit,
statutory declaration or copy document is to be used only in Australia
rather than in a foreign country, with the possible exception of a few
Commonwealth countries not including the United Kingdom or New Zealand
except for very limited purposes. Justices of the Peace (JPs) are (usually)
laypersons who have minimal, if any, training (depending on the
jurisdiction) but are of proven good character. Therefore a US notary
resembles an Australian JP rather than an Australian notary.
Canada
Canadian notaries public are very much like their American counterparts,
generally restricted to administering oaths, witnessing signatures on
affidavits and statutory declarations, providing acknowledgements,
certifying true copies, and so forth.
Nova ScotiaIn Nova Scotia the position is known as a Commissioner of
Oaths, and is regulated by provincial Notaries and Commissioners Act.
Individuals hold a commission granted to them by the Minister of Justice.
"A Commissioner of Oaths is deemed to be an officer of the Supreme Court
of Nova Scotia. Commissioners take declarations concerning any matter to
come before a court in the Province." [6]. Additionally, individuals
with other specific qualifications, such as being a current Member of
the Legislative Assembly, commissioned officer of the Royal Canadian
Mounted Police or Canadian Forces make act as if explicitly being a
Commissioner of Oaths.
British ColumbiaIn British Columbia, a notary public is more like a
British or Australian notary (see supra). Appointments are for life and
made through the Society of Notaries Public of British Columbia.[7]
Furthermore, BC notaries exercise far greater power, able to dispense
legal advice and draft public instruments including:
Notarization
notarizations/attestations of signatures, affidavits, statutory
declarations, certified true copies, letters of invitation for foreign
travel, authorization of minor child travel, execution/authentications
of international documents, passport application documentation, proof of
identity for travel purposes
Real estate law
home purchase/sale; business purchase/sale; mortgages and refinancing;
residential, commercial, & manufactures home transfer of title;
restrictive covenants & builder's liens
Wills & estate planning
preparation and searches of last wills and testaments, living wills,
health care directives, representation agreements, power of attorney
Contract law
preparation of contracts and agreements, commercial lease and
assignments
easements and right of way
insurance loss declarations
marine bills of sale & mortgages
marine protestations
personal property security agreements
purchaser's side for foreclosures
subdivisions & statutory building schemes
zoning applications
QuebecIn Quebec, there are no notaries public, only notaires, or civil-law
notaries. As full lawyers, they perform functions similar to those of
British Columbian notaries, though in Quebec, the notarial profession
encompasses even more areas of practice.[8] To become a notary in Quebec,
a candidate must hold a Bachelor's degree in civil law, after which
would follow a one-year Master's in notarial law,[9] and a traineeship (called
a "stage") before being written on the Rolls and able to practice.
Iran
Notary Public is a trained lawyer that should pass some special exams to
be able to open his office and start his work. Persian meaning of this
word is "سردفتر" means head of the office and his assistant called "دفتریار".
Both these persons should have Bachelor degree in law or Master degree
in civil-law.
Republic of Ireland
The office of notary public is one of great antiquity and historical
significance. It is unclear, however, when or where the first public
notary was formally appointed. One of the earliest references to a
notary dates back to the time of Cicero (106 – 43BC), the famed Roman
orator and statesmen, who, it is claimed, employed persons skilled in
the art of writing to record or ‘note’ his speeches.
After the abdication in 476 AD of Romulus Augustus, the last emperor of
Rome, the papacy became the de facto ruler of Rome. When Pope Leo III
crowned Charlemagne emperor of the Holy Roman Empire in 800AD the empire
encompassed the entire heartland of Western Europe, stretching from the
Danube to the Pyrenees and from Rome to the North Sea. Ecclesiastical
notaries were by then part of the papal household and were known to deal
with both ecclesiastical and civil matters. At this time it had become
the practice of kings, princes and rulers in communion with the Holy See
to seek various dispensations, privileges and faculties which were at
the gift of the papacy. One such faculty concerned the appointment of
notaries.The Pope, for administrative convenience, frequently delegated
the power to appoint public notaries to religious (usually Archbishops)
and temporal leaders throughout the Holy Roman Empire. In England, the
power to create notaries was vested in and exercised by the Archbishop
of Canterbury under papal and imperial authority. In Ireland, public
notaries were at various times appointed by the Archbishop of Canterbury
and the Archbishop of Armagh. The position remained so until the
Reformation.
There is archival evidence showing that public notaries, acting pursuant
to papal and imperial authority, practised in England and in Ireland in
the 13th century and it is reasonable to assume that notaries functioned
here before that time.
After the Reformation, persons appointed to the office of public notary
either in Great Britain or Ireland received the faculty by royal
authority and appointments under faculty from the Pope and the emperor
ceased.
In 1871, under the Matrimonial Causes and Marriage Law (Ireland)
Amendment 1870, the jurisdiction previously exercised by the Archbishop
of Armagh in the appointment of notaries was vested in and became
exercisable by the Lord Chancellor of Ireland. In 1920, the power to
appoint notaries public was transferred to the Lord Lieutenant of
Ireland. The position in Ireland changed once again in 1924 following
the establishment of the Irish Free State. Under the Courts of Justice
Act, 1924 the jurisdiction over notaries public was transferred to the
Chief Justice of the Irish Free State. In 1961, under the Courts (Supplemental
Provisions) Act of that year, and the power to appoint notaries public
became exercisable by the Chief Justice. This remains the position in
the Republic of Ireland, where notaries are appointed on Petition to the
Supreme Court, after passing prescribed examinations. The governing body
is the Faculty of Notaries Public in Ireland. In Northern Ireland,
notaries public are appointed by the Lord Chief Justice. The vast
majoirty of notaries in Ireland are also solicitors. A non-solicitor,
who was successful in the examinations as set by the governing body,
applied to the Chief Justice to be appointed a notary public. The Chief
Justice heard the adjourned application on 3 March 2009 and reserved his
judgement on that date. As at 6 April 2010 this judgement has not been
delivered.
New Zealand
Unless excluded under dominion or colonial law, the Master of the
Faculties formerly had authority to appoint notaries public in a
dominion or colony. The admission of notaries in the Commonwealth was
governed specifically by the Public Notaries Act 1833 (UK). The
provisions of the Public Notaries Act 1801-43 requiring a notary to be a
solicitor did not apply overseas, nor need a notary have a practicing
certificate as a solicitor, or from the Court of Faculties.
The usual procedure followed is that the applicant lodges with the Court
of Faculties a memorial counter-signed by local merchants, shipping
companies, bankers and other persons of substance, which show the local
need of a notary and the fitness of the applicant. They also lodge their
certificate of admission as a solicitor. A fee accompanies the
application. The applicant, with the support of two other notaries
public, who vouch that the applicant is well skilled in the affairs of
notarial concern, petitions the Master of the Faculties.
The chief consideration for the approval of an application is whether
there is sufficient need in the district, regarding the convenience of
bankers, ship-owners and merchants. The local society of notaries must
be satisfied that a need exists for an additional notary in the area
served by the applicant. Priority is given, as a matter of practice, to
an applicant within the same firm, as a replacement in the case of the
death of a notary, or where a practicing notary is reducing his or her
workload because of age or infirmity.
The Master of the Faculties continues to appoint notaries overseas in
the exercise of the general authorities granted by s 3 of the
Ecclesiastical Licenses Act 1533 (Eng). In these cases he is guided by
local considerations of public convenience.
Sri Lanka
Until 1973 a separate group of lawyers existed to carry out litigation
known as Proctors. A proctor was not a practitioner in a court of law.
These were also known as Notaries. However since 1973 the legal
practitioners were classed solely as Attorneys at law combining the
former advocates and proctors. This new position of attorney at law
brought with it automatic appointment as a notary public when the
practitioner took oaths as an attorney at law, thus becoming legally
qualified for litigation.
United Kingdom
England and WalesAfter the passage of the 1533 Act, which was a direct
result of the Reformation in England, all notary appointments were
issued directly through the Court of Faculties. The Court of Faculties
is attached to the office of the Archbishop of Canterbury.
In England and Wales there are several classes of notaries. English
notaries who, like solicitors, barristers, legal executives and licensed
conveyancers, are also commissioners for oaths, also acquire the same
powers as solicitors and other law practitioners, with the exception of
the right to represent others before the courts (unless also members of
the bar or admitted as a solicitor) once they are licensed or
commissioned notaries. In practice almost all English notaries, and all
Scottish ones, are also solicitors, but typically do not perform such
services.[10]
Commissioners of oaths are able to undertake the bulk of routine
domestic attestation work within the UK, and many documents, including
signatures for normal property transactions, do not need professional
attestation of signature at all, a lay witness being sufficient.
In practice the need for notaries in purely English legal matters is
very small; for example they are not involved in normal property
transactions. Since a great many solicitors also perform the function of
commissioners for oaths and can witness routine declarations etc. (all
are qualified to do so, but not all offer the service), most work
performed by notaries relates to international matters in some way, and
documents needing to be used abroad, and many of the small number of
English notaries have strong foreign language skills and often a foreign
legal qualification. The Notaries Society gives the number of notaries
in England and Wales as "about 1000," all but 70 of whom are solicitors.
There are also Scrivener notaries, who get their name from the
Scriveners' Company; until 1999, when they lost this monopoly, they were
the only notaries permitted to practise in the City of London. They used
not to have to first qualify as solicitors, but they had knowledge of
foreign laws and languages.
Currently to qualify as a Notary Public in England and Wales it is
necessary to have earned a law degree or qualified as a solicitor or
barrister in the past five years, and then to take a two-year distance-learning
course styled the Postgraduate Diploma in Notarial Practice from the
University of Cambridge. At the same time, any applicant must also gain
practical experience, which would usually be with a solicitor notary.
The few who go on to become Scrivener Notaries require further study of
a foreign language and foreign law and a two-year mentorship under an
active Scrivener notary.
The other notaries in England are either ecclesiastical notaries whose
functions are limited to the affairs of the Church of England or other
qualified persons who are not trained as solicitors or barristers but
satisfy the Master of the Faculties of the Archbishop of Canterbury that
they possess an adequate understanding of the law. Both the latter two
categories are required to pass examinations set by the Master of
Faculties.
The regulation of notaries was modernized in the 1990s as a result of
section 57 of the Courts and Legal Services Act 1990.
Notarial services generally include:
attesting the signature and execution of documents
authenticating the execution of documents
authenticating the contents of documents
administration of oaths and declarations
drawing up or noting (and extending) protests of happenings to ships,
crews and cargoes
presenting bills of exchange for acceptance and payment, noting and
protesting bills in cases of dishonour and preparing acts of honour
attending upon the drawing up of bonds
drawing mercantile documents, deeds, sales or purchases of property, and
wills in English and (via translation), in foreign languages for use in
Britain, the Commonwealth and other foreign countries
providing documents to deal with the administration of the estate of
people who are abroad, or owning property abroad
authenticating personal documents and information for immigration or
emigration purposes, or to apply to marry, divorce, adopt children[11]
or to work abroad
verification of translations from foreign languages to English and vice
versa
taking evidence in England and Wales as a Commissioner for Oaths for
foreign courts
provision of Notarial copies
preparing and witnessing powers of attorney, corporate records,
contracts for use in Britain or overseas
authenticating company and business documents and transactions
international domain name transfers
ScotlandNotaries public have existed in Scotland since the 13th century
and developed as a distinct element of the Scottish legal profession.
Those who wish to practice as a notary must petition the Court of
Session. This petition is usually presented at the same time as a
petition to practice as a solicitor, but can sometimes be earlier or
later. However, to qualify, a notary must hold a current Practising
Certificate from the Law Society of Scotland, a new requirement from
2007, before which all Scottish solicitors were automatically notaries.
Whilst notaries in Scotland are always solicitors, the profession
remains separate in that there are additional rules and regulations
governing notaries and it is possible to be a solicitor, but not a
notary. Since 2007 an additional Practising Certificate is required, so
now most, but not all, solicitors in Scotland are notaries - a
significant difference from the English profession. They are also
separate from notaries in other jurisdictions of the United Kingdom.[12]
The profession is administered by the Council of the Law Society of
Scotland under the Law Reform (Miscellaneous Provisions) (Scotland) Act
1990.
In Scotland, the duties and services provided by the Notary are similar
to England and Wales, although they are needed for some declarations in
divorce matters for which they are not in England. Their role declined
following the Law Agents (Scotland) Amendment Act 1896 which stipulated
only enrolled law agents could become notaries and the Conveyancing (Scotland)
Act 1924 which extended notarial execution to law agents. The primary
functions[13] of a Scottish notary are:
oaths, affidavits, and affirmations
affidavits in undefended divorces and for matrimonial homes
maritime protests
execution or certification for foreign jurisdictions, e.g., estates,
court actions, powers of attorney, etc.
notarial execution for the blind or illiterate
entry of a person to overseas territories
completion of the documentation required for the registration of a
company in certain foreign jurisdictions; and
drawing for repayment of Bonds of Debenture
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