Steps to Proper Notarization

Accommodating a Disability: Signing by Mark

The differences in the notary law of the fifty states and the District of Columbia are as varied as the topography within the individual states. The specific laws or rules that guide the procedure for handling a notarization for a client who is signing by mark are no different. Unfortunately, it is impossible to create one recommended best practice procedure to advise all of our readers on how to handle the situation of signing by mark because notary laws vary significantly from state to state. Therefore, this article will cover the following six topics to assist readers in preparations for this type of signing:

1. Notary rules common to all states regarding the client who is signing by mark.
2. The types of disabilities or frailties that may typically call for signing by mark.
3. Five areas that typically contrast from state to state for signing by mark.
4. Review of several example states’ rules for handling a document signed by mark.
5. Notary services must not be refused based on signer’s disability or frailty.
6. How to find out more regarding this type of act.

1. Notary rules common to all states regarding the client who is signing by mark.

Commonalities in this type of notary act exist for all states. There are several criteria necessary to accommodate a notarization for a client with a disability or frailty who must sign by mark as well as for all routine notarizations.

-The client must appear before the notary in person. There is no circumstance that exempts a signer from appearing before a notary. If the client cannot easily travel due to a disability or frailty, arrangements must be made with a notary who will travel and meet with the client at the client’s location. There is no known allowance in any jurisdiction for individuals with disabilities to meet with the notary by use of telephones, webcams, or other electronic means that would allow the notary to be in one location and view or speak with the client signing a document in a remote location. Even in the case of a client having a disability or frailty, arrangements must be made so that the notary and the client are in the physical presence of one another in order for the notary to perform a lawful notarization. If this cannot be accomplished, then the notary must refuse to notarize the document.

-The client must be properly identified according to state law. Frailty or disability does not exempt a person from being properly identified by a notary prior to an act of notarization. If proper identification documents are not available, and if the notary is not personally acquainted with the client, the notary should consider the credible witness introduction method for proper identification. If none of these methods are available, the notary must refuse the notarization.

-The client must be aware of his or her actions. The notary must determine if the signer is alert and that s/he is not signing under duress. Physical frailty or disability certainly does not render a client incompetent to sign important legal documents. However, the notary should communicate with the client briefly to determine if the client is alert and aware that s/he is signing a document that may have an important impact. If the notary cannot communicate satisfactorily with the client, the notarization should be refused.

-In addition to the above requirements, the notary must also:
-Review the document for completeness and assure no blanks are left in the document prior to having the client place his or her mark.
-Be able to communicate with the client so that the notary can complete the oath or affirmation ceremony with the client or take the acknowledgment of the client.
-Complete an accurate date and venue within the certificate.
-Complete the correct form of notary certificate for a signing by mark client if the signing by mark certificate is different from a certificate used under normal circumstances.

2. The types of disabilities or frailties that may typically call for signing by mark.

This article intends to cover situations wherein a client is able to personally read and comprehend the document s/he will be signing. Such a client may be too physically weak to sit up and write a full signature or s/he may have suffered a stroke that affects his or her motor skills and causes problems with writing. This type of client may be of any age, although an elderly client who is also frail would not be uncommon to this type of situation. The scope of this article does not include clients who are blind or unable to read the language in which the document is written. Such special situations and clients are different in their needs and will be covered in future articles.

It should also be noted that this article also does not intend to include potential signers of documents who lack sufficient mental capacity to understand what they are signing and who are unable to make important decisions for themselves.

3. Five areas that typically vary from state to state for signing by mark.

During a notarization where the signer uses a mark rather than a signature, there are five variables that set each state apart from the others.

Notary’s action: What will the notary do differently, if anything, when the signer signs by mark? There are states that do not require anything special during a signing by mark.

Witnesses: What part, if any, do witnesses play in this special type of signing? The requirements for one or more witnesses to participate contrast from state to state. Do the witnesses have to be identified by the notary? Identification requirements for witnesses also vary.

Document: Will any notation be made on the document? Some states require the witness(es) to sign the document and to print their name(s) and address(es).

Certificate: Will there be differences in the notary certificate? States differ on whether or not additional wording will be added to the certificate, as well as the wording to be added.

Journal: Assuming the notary is required to keep a journal, is there a difference between what is recorded for a client who signs by mark rather than a client who does not?

Note the differences between the rules from the states referenced below:

4. Review of several example states’ rules for handling a document signed by mark.

The states covered by this article for the purpose of providing examples are California, Colorado, Florida, Nebraska, Oregon, and Texas. If your state is not covered, there is a procedure you can follow in order to find out what you need to know. This will be detailed at the end of this article in topic #6.

California – Signing by mark is covered in the California Notary Public Handbook on page 15 and includes an example of the signatures and the completed notary certificate. California notaries are instructed as follows: If the signer of an instrument cannot write (sign) his or her name, that person may sign the document by mark. When the person places the mark it must be witnessed by two witnesses who must also sign the document. One witness must write the person’s name by the mark and then sign the document as a witness. The witnesses are not required to show identity to the notary. They do not have to sign the notary’s journal as witnesses. (Exception: If the witnesses are also acting as credible witnesses, the notary must follow the common procedures required for credible witnesses.) Once the notary act is complete, the signer must place his or her mark in the notary’s journal. Beside the mark in the notary journal, the witness who signed the name beside the mark on the document must then sign exactly as the document was signed. Thereafter, that witness must also sign as a witness in the notary’s journal. The notarial certificate does not change from the common certificate used in California.

Colorado - The Colorado Revised Statutes state that a notary may certify the subscription or signature of an individual when it appears that such individual has a physical limitation that “restricts their ability to sign by writing or making a mark”. Therefore, it can be concluded that Colorado recognizes a simple mark made by the signer to be an acceptable signature that can be notarized.

For those who are interested, the text of the law that guides this type of act also goes on to explain how the individual’s signature may be placed by another person. If this is requested by the signer of the document, then the Colorado notary could follow the procedure outlined in the Colorado Revised Statutes . Simply put, the individual’s name may be signed by an individual (other than the notary) at the direction and in the presence of the client and in the presence of the notary. The statute further says that the words "Signature written by at the direction and in the presence of the client on whose behalf the signature was written" or words of substantially similar effect shall appear under or near the signature. While the Colorado Notary Handbook does not address this situation specifically, there is a link referred to on the Colorado Secretary of State’s website that directs notaries to read the Colorado Revised Statutes ( C.R.S. 12-55-101 et seq.). Contained at that link is the basis for the signature by mark statements above, as well as additional valuable information that Colorado notaries are encouraged to read.

Florida – In Florida, the document signed by the client placing a mark is witnessed by two disinterested persons. The notary prints the person's first name at the beginning of the designated signature line and the person's last name at the end of the designated signature line. The signer should make the mark between the first and last name. The notary then prints the words "His (or Her) Mark" below the person's signature mark. The witnesses shall also sign the document with the designation, “Witness: Signature of Witness ”. The witnesses must also print their names and addresses neatly under the signature line on the document. Note that there will be a slight difference in the certificate. See the italics, as follows. The acknowledgment will say, “The foregoing instrument was acknowledged before me this _____ day of __________, (year) , by (name of person acknowledging), who signed with a mark in the presence of these witnesses: Witness 1 and Witness 2.” The jurat will say, “Sworn to and subscribed before me this _____ day of __________, (year) , by (name of person making statement), who signed with a mark in the presence of these witnesses: Witness 1 and Witness 2.” The names of the witnesses will be printed on the certificate, as indicated. Florida notaries are not required to keep a journal of their notary acts, so the individual notary decides what to record in the journal. The best practice recommended is that the signer places his or her mark in the journal and the witnesses sign the journal, as well. For more information and detail regarding a client signing by mark in Florida, please see Governor’s Reference Manual for Notaries of the Florida statues or refer to the, page 38.

Nebraska - The Nebraska Notary Handbook outlines the procedure to be followed when a client is only able to affix a mark in lieu of affixing his or her signature. This appears on page 8, paragraph #30 of the handbook . The client may affix his or her mark in the presence of the notary and two witnesses unaffected by the document. Both witnesses must sign their names beside the mark made by the client. The notary public writes below the mark, “Mark affixed by (name of signer) in the presence of (names and addresses of the two witnesses) and undersigned Notary Public.” Then, the notary notarizes the signature by mark through an acknowledgment, jurat, or signature witnessing. For more information, see the Adobe PDF located at this link . Note that this is a lengthy document with many other unrelated statutes included; however, on page 34 of the document you will be able to read the Nebraska Revised Statute §64-105.02, which is related to this type of client’s needs.

Oregon - The Oregon statutes do not speak to notarizing a signature by mark; however, on pages 44-45 of the Oregon Notary Public Guide, there is a lengthy and thorough explanation for Oregon notaries regarding the client who places a signature by mark. The guide is very specific about how to proceed with this type of signing. Therefore, so that nothing is left out of the interpretation by condensing this information, we refer you to the guide so that you can personally review the entire section. Oregon notaries should also be sure to refer to page 45 of the Oregon Notary Public Guide to view the specific certificates necessary for this procedure. There are two: (1) Signature by Mark Certificate and (2) the Witness Affidavit form.

Texas – Neither the standard Notary Public Educational Information provided to Texas notaries on the Secretary of State website nor the set of FAQs for Notaries Public specifically addresses signing by mark. However, there is a relatively new PowerPoint presentation on the website also entitled Notary Public Educational Information. This presentation can be downloaded from the website and viewed by notaries. The information contained on slide #45 summarizes Section 406.0165 of the Texas Government Code:

“A notary may sign the name of an individual who is physically unable to sign or make a mark on a document presented for notarization:
-if directed to do so by the disabled individual; and
-in the presence of a witness who has no legal or equitable interest in the transaction.
You must include the following beneath the signature for the individual: ‘Signature affixed by notary in the presence of (name of witness), a disinterested witness, under section 406.0165, Government Code.’ ”

Section 406.0165 of the Texas Government Code appears to address signing by mark similarly to Colorado’s method above. The PowerPoint presentation says that the notary may sign if the individual is physically unable to sign; Section 406.0165 of the Texas Government Code defines "disability" as "a physical impairment that impedes the ability to sign or make a mark on a document." Therefore, it can be concluded that the Texas notary law does not necessarily view a signature by mark to be something other than a regular signature and the notary should proceed as if it were a normal signing of a document.

5. Notary services must not be refused based on signer’s disability or frailty.

As you know, many good reasons for refusing a notarization exist. These include being unable to properly identify a client, the client refusing to appear before the notary, the document being incomplete, the type of notarization requested not being allowed by the notary’s state, and other things that commonly prevent a lawful notarization.

However, it is an accepted standard nationwide that a notary must not refuse a client’s need for notary services simply because of a disability and, in this particular case, because the client is signing by placing a mark due to a frailty or disability. Not knowing how to handle this type of act may cause a notary to refuse the notarization. Therefore, it is important that notaries learn all that they possibly can about accommodating clients with special needs so that no citizen is turned away simply because the notary is not informed or does not fully understand their duties. Knowing one’s duties well is one of the requirements of being a commissioned notary public.

The above statements regarding refusal relate to a client who has come to the notary’s office for notarization. This does not mean that a notary must travel to the client with a disability while receiving only the statutory fees allowed by his or her state. As mentioned earlier, it may be necessary for the client to locate a mobile notary who will negotiate a reasonable fee with the client to travel to the client’s location to accommodate the client.

6. How to find out more regarding this type of act.

We regret that, due to research time involved and constraints of article length, it is impossible to research and publish every state’s method of notarizing for a client who is signing by mark. We hope that this article encourages our readers to learn as much as possible about performing duties necessary with this type of client, as well as other unusual situations.

In order to learn more about this for your state:

-First, visit the website of your commissioning office or refer to your notary handbook. The information may be provided for you in your handbook or on the website. If you are able to locate this information, make notes on how to manage this type of notarization and keep it with other materials you refer to regularly to refresh your memory on notary duties.

-Many states’ reference materials for notaries do not cover this issue. If yours does not, you should obtain the email address for your state’s commissioning office from the office’s website. A sample letter is prepared below which you can copy and paste into an email.

SUBJECT LINE: Inquiry - Notarization for signer who signs by mark.

BODY OF EMAIL:
To Whom it May Concern:

I have searched our state's notary rules and I am unable to locate the information I need to properly complete a notarization for a signer who signs by mark. Specifically, I am referring to a signer who is literate and able to see and read the document he or she is signing, but who is unable to sign a full signature due to frailty or disability.

If I am overlooking it, will you please direct me to the information? If not, will you please outline the procedure I should follow according to our state’s best practice for this type of signer?

Sincerely,

Notary Name
County of Commission: ____
Commission Number: ___if any___
Address
City, State, Zip
Phone number during the day

Helpful Hints:
Viewing *.pdf documents. Several of the links in this article require the use of Adobe Reader . If you do not have Adobe Reader installed on your computer, please visit this link to download.
Viewing *.pps presentations. In the Texas portion of topic #4 above, there is a reference to a PowerPoint presentation downloadable from the Texas Secretary of State’s website. If you do not have PowerPoint installed on your computer you may not be able to view the presentation. It is possible you will need to download a program to view PowerPoint presentations. OpenOffice is a free suite of programs which can be used to successfully view and create documents and presentations commonly created by Microsoft products. OpenOffice can be downloaded here.

Final Note: The American Association of Notaries recommends that notaries familiarize themselves with their respective state’s rules and laws regarding the topic of this article. The articles published by the American Association of Notaries are never intended to be a substitution for the guidance of the notary public administrative office of the reader’s state nor are the articles intended to be legal advice. When notaries are unsure of how to perform any notary duty, they should contact their state’s commissioning office or the attorney of their choice.

Comments? Questions? How are we doing? The American Association of Notaries strives to provide information that will help readers anticipate unusual situations and to perform their notary duties well. Do you have a suggestion for an article? We would like to hear from you. Email us with your comments or suggestions for articles at info@usnotaries.com .

The above article provides general information only. It does not provide legal advice for any particular situation. No professional advisory relationship exists between the American Association of Notaries and any recipient of this email. Please consult your private attorney for legal advice and consult your commissioning state office for clarification on your important notarial duties.

Notary bonds and errors and omissions insurance policies provided by this insurance agency, American Association of Notaries, Inc., are underwritten by Western Surety Company, Universal Surety of America, or Surety Bonding Company of America, which are subsidiaries of CNA Surety.