Responsibilities of a Notary Public
The Vermont State Archives and Records Administration (VSARA) will will close Friday, December 6th, at 11:30 a.m. for an officewide meeting. We will resume regular operating hours on Monday, December 9, 2013.
Responsibilities of a Notary Public
There are a variety of duties that may be performed by a notary public in Vermont. First and foremost, in all cases, you must identify the signer to your full satisfaction. You may take acknowledgments, administer oaths and affirmations, certify copies of original documents, notarize affidavits and depositions and issue protests under seal. Each of these responsibilities is treated separately below.
Acknowledgment means to admit, affirm, declare, testify, avow, confess or own as genuine. Notaries as notaries do not acknowledge; they take acknowledgments, meaning that they certify that an individual has acknowledged that an act of signing a document is his or her free act and deed.
The most common form of acknowledgment is during the conveyance of property. Deeds and other conveyances of land, or of an estate or interest in land, must be signed by the party granting the interest and acknowledged by the grantor before a town clerk, notary public, master, county clerk or judge or register of probate, and recorded at length in the clerk's office of the town in which the lands lie. Acknowledgments of this type before a notary public do not require that a notary seal be affixed to the notary's signature. 27 V.S.A. §341. The same procedural steps are required for a deed of bargain and sale, a mortgage or other conveyance of land in fee simple or for term of life, or a lease for more than one year from the date of the making of the lease. 27 V.S.A. §342. The same process also applies to mortgages by deed of machinery attached to or used in a shop, mill, quarry, mine, printing office or factory. 27 V.S.A. §441.
Any document may be acknowledged, but many do not require acknowledgment. Among these are wills, which are attested to by two or more credible witnesses in the presence of the testator and of each other. 14 V.S.A. §5. Similarly, corporate charters are not required to be acknowledged under Vermont law.
While Vermont law does not presently require a particular form
for acknowledgment, the following is offered as typical:
STATE OF ___________________)
COUNTY OF ____________________)ss.
On this ____ day of ________________, 20__, before me personally appeared (name of person acknowledging) to me known to be the person who executed the foregoing instrument, and he (she) thereupon duly acknowledged to me that he (she) executed the same to be his (her) free act and deed.
(Notary signs here)
Oaths and Affirmations
An oath or affirmation is defined as a form of attestation by which a person signifies that he or she is bound in conscience to perform an act faithfully and truthfully. The most common form of oath or affirmation administered by notaries public in Vermont is the oath of office.
State law permits notaries to administer oaths and affirmations of office. 12 V.S.A. §5851. A notary may administer an oath or affirmation to any state or local officer. Local offices requiring oaths or affirmations include justices of the peace, town clerks, selectpersons, constables, listers, grand jurors and fence viewers. 24 V.S.A. §831; 4 V.S.A. §491. Copies of these oaths or affirmations should be filed, with the signature of the officer and the notary, in the town clerk's office.
An affirmation is a legal substitute for an oath. State law provides that, in the administration of an oath, the word "swear" may be omitted, and the word "affirm" substituted, when the person to whom the obligation is administered is religiously scrupulous of swearing, or taking an oath in the prescribed form. In this case, the words "so help you God" may be omitted, and the words "under the pains and penalties of perjury" substituted; and a person so affirming shall be considered, for every legal purpose of privilege, qualification or liability, as having been duly sworn. 12 V.S.A. §5851.
The pains and penalties of perjury, by the way, may include imprisonment for not more than 15 years and a fine of not more than $10,000.00, or both. 13 V.S.A. §§2901, 2904.
The oath or affirmation of public office is set out under the section "How to become a notary public."
Whenever a public official begins a new term of office, even if he or she has taken an oath or affirmation of office before, a new oath or affirmation should be administered before the official begins his or her official duties.
There is no requirement in Vermont that a Bible be used in the administration of oaths or affirmations, and no legal prohibition against administration on a Sunday. Asking an individual to raise his or her right hand is also not technically required by law, but the practice is so ingrained in tradition that it is advisable. A notary may examine a person to see if he or she comprehends the meaning of the oath or affirmation, and may decline to administer it if not satisfied.
Oaths and affirmations may not be administered over the telephone or by proxy. Though not required by law in Vermont, it is good practice to keep a journal of all oaths and affirmations administered, as well as information on the date, time and place of these official acts, for future reference.
Certification of Copy
A notary may certify that a copy of an original document is a true copy. 24 V.S.A. §445. This applies to any document of a personal nature. It does not apply to vital records, such as birth, marriage, and death. No particular form is established for certified copies, however, the following is typical:
"This will certify that the attached document(s) is a true copy
of (description of document copied, including number of
Certified this __day of ____________ , 20__
Affidavits and Depositions
Notarization of affidavits and depositions is within the authority of notaries public in Vermont, but these duties are more likely to be handled by notaries who are also attorneys or paralegals or those who have specialized training. What appears below is a brief outline of the subject and is not meant to be comprehensive. Notaries untrained or inexperienced in these duties should proceed with caution into this field.
An affidavit is a sworn or affirmed written statement or declaration of facts made voluntarily by an individual (affiant). The oath or affirmation that confirms the truth of an affidavit may be taken before a notary public in Vermont. 12 V.S.A. §5854.
An oath or affirmation should be taken (see the following oath form) and a jurat completed at the end of the affidavit, reading "Subscribed and sworn to before me this day of , 20 ," and signed by the notary following this statement. The affiant should also sign the document.
Similarly, depositions in civil matters may be taken before a notary public, who by law has the power to administer oaths and take testimony. V.R.C.P. 28(a). The oath required of one about to be deposed is as follows:
You solemnly swear (or affirm) that the evidence you shall give, relative to the cause now under consideration, shall be the whole truth and nothing but the truth. (If an oath) So help you God. (If an affirmation) Under the pains and penalties of perjury.
The Rules of Civil Procedure require that the notary certify on the deposition that the witness was duly sworn by him or her, and that the deposition is a true record of the testimony given by the witness. Then, unless the court orders something else to be done, the notary should securely seal the deposition in an envelope endorsed with the title of the action and marked "Deposition of (name of witness here)" and promptly file it with the court or send it by registered or certified mail to the clerk of that court. V.R.C.P. 30(f).
Once again, good record keeping of notarial acts will always repay the time it takes to note down what you did as a notary on a particular day.
A notary is also allowed to issue subpoenas for attendance of witnesses, production of documentary evidence and for taking depositions. V.R.C.P. 45(a).
A protest is a formal notarial act in writing and under seal made at the request of a holder of a note or bill, in which the holder declares that the bill or note was presented for payment or acceptance and that payment or acceptance was refused. It is rarely used today, and then almost exclusively in the case of foreign drafts.
Under Vermont law, a protest must identify the instrument and certify either that due presentment has been made or the reason why it is excused and that the instrument has been dishonored by nonacceptance or nonpayment. It may also certify that notice of dishonor has been given to all parties or to specified parties. 9A V.S.A. §3-509.
Again, notaries who are unfamiliar with protests should proceed with extreme caution into this field.
Under Vermont law, your authority to act as a notary extends statewide, in spite of the fact that you are appointed by the superior judges of one county. 24 V.S.A. §441.
In 1994, 27 V.S.A., §379 was added to provide that "Acknowledgments for deeds and other conveyances, and powers of attorney for the conveyance of lands, which are taken out of state before a proper officer of this state, shall be valid as if taken within the state." This applies only to documents that will be returned to Vermont for recording and is the only case where your notary commission may cross state lines.
Vermont law does not require the use of seals by notaries. This requirement was repealed in 1984 (No. 194, Adj. Sess., §2). For documents leaving the state you may need a seal, but within the state no seal is required.
Conflict of Interest
When the Communist Party candidate for U.S. Representative appeared in the office of the Secretary of State in Montpelier in 1940, carrying his certificates for nomination, Secretary Myrick refused to accept and file them, on the grounds that the oaths of the signers (that they were legal voters) had been administered by the candidate himself, who happened to be a notary public. The Vermont Supreme Court ultimately supported the decision of the Secretary of State. Schrimer v. Myrick, 111 Vt 255 (1940).
The court explained that "[a]lthough the administration of an oath is a ministerial act, it has been generally held that, whether ministerial or quasijudicial in nature, public policy forbids it to be done by one who has either a financial or a beneficial interest in the proceeding." Id. at 257. The court included among its list of disqualifying interest the acknowledgment of a deed by one with a beneficial interest in the conveyance.
Avoid raising the issue of a conflict of interest. If you have any doubt about your beneficial or financial interest in a transaction to which you are being asked to exercise notarial powers, decline.
The only exception is as a stockholder in or employee of a corporation in Vermont, where the law expressly permits you as a notary public to take acknowledgments to an instrument to which a corporation is a party. 11 V.S.A. §231.
In 1968, a California notary public notarized the signature of a woman who appeared before him with what appeared to be a valid driver's license. The signature later was challenged as a forgery and the allegation made that the woman was not the person she claimed to be. When the notary was sued to be held liable for repayment of a loan which was granted in part by relying on the forged document, the court held that a notary could be found negligent by relying solely on third party introductions or identification papers such as passports or drivers' licenses. The court focused on the need for personal knowledge of the identity of the signer by the notary.
Vermont law is not as explicit as California's, and yet there is good reason for every Vermont notary to set high standards for identification before performing notarial acts. A notary is liable to the person involved for all damages caused by his or her official misconduct. 24 V.S.A. §446. Vermont law does not require a bond for notaries, and, although many states do require a bond, the list of claims made against those bonds is convincing evidence that creditors and others who have relied on notarization as a protection against false claims will indeed seek to hold notaries liable for their actions. We have not heard of such suits in Vermont, but the potential for them is always present.
To that end, we recommend utmost prudence in the performance of notarial acts. Your greatest vulnerability comes from acknowledgments of signatures by signers you don't know personally. If you don't know the person to be who he or she claims to be, you have three choices. You may refuse to act. You may rely on a credible witness, who is personally known to you. Or, to be most prudent, you can insist that a credible witness personally known to you takes and signs a written oath, administered by you as a notary, that he or she personally knows the signer. As a notary, you are then testifying to the witness's oath. This oath could be satisfied by the following language:"I (the witness) do solemnly swear (or affirm) that I know this person (the signer) to be (place signer's name here)."
You should then complete a jurat following this oath, as found on page 9 of this booklet.
Keeping a journal of your notarial acts is also not required by Vermont law, as it is in many other states, but it is a good idea. Buy a notebook or journal, and enter the date, names of the parties who sign the documents, the type of document and the time and have the signers sign their names in your book as well, for your greatest protection as a notary.
Vermont law does not establish fees notaries may charge except for protests under seal ($2.00 per protest) and certificates under seal ($.50 per certificate). 32 V.S.A. §1759. If you are a notary public ex-officio, the law requires that you provide notarial services without charge or fee. 32 V.S.A. §1403(b).
Apostilles; Foreign Authentication
Occasionally a notary public is asked to notarize documents destined for use in foreign countries. Prior to October 15, 1981, there was a cumbersome process in place for legalization of these documents, but on that date the United States formally entered the Hague Convention on Abolishing the Requirement of Legalization for Foreign Documents. Now all documents originating in Vermont, properly certified by a notary public, will be admissible in certain foreign countries without any further certification, by the following process.
The document, with proper notarization, must be brought or sent to the Secretary of State's office in Montpelier. There the notary's signature will be verified by comparing it to the notary appointment form on file and a simple document called an Apostille filled out and signed by either the Secretary of State or the Deputy Secretary of State. The Apostille then is embossed with the seal of the Secretary of State. A $2.00 fee per document should accompany the request. Once the process is completed, the document is then considered legalized in the many countries.
For a full, current listing of member states and countries, visit the Hague Conventions website at: http://www.hcch.net
This page was last updated on: 2013-10-07.