The “we are from the government and are here to help you” people in the Arizona legislature passed a terrible law that became effective in Arizona on July 20, 2011. Arizona Senate Bill 1230 added new and outrageous notary requirements that will affect all documents notarized by an Arizona notary after July 19, 2011. The new law will invalidate tens of thousands of documents notarized by Arizona notaries because of ignorance of the law and simple mistakes.
The new law added the following provisions to Arizona Revised Statutes Section 41-313:
B. Notaries public shall perform the notarial acts prescribed in subsection A of this section only if:
1. The signer is in the presence of the notary at the time of notarization.
2. The signer signs in a language that the notary understands.
3. Subject to subsection D, the signer communicates directly with the notary in a language they both understand or indirectly through a translator who is physically present with the signer and notary at the time of the notarization and communicates directly with the signer and the notary in languages the translator understands.
4. The notarial certificate is worded and completed using only letters, characters and a language that are read, written and understood by the notary public.
C. If a notary attaches a notarial certificate to a document using a separate sheet of paper, the attachment must contain a description of the document that includes at a minimum the title or type of document, the document date, the number of pages of the document and any additional signers other than those named in the notarial certificate.
D. A notary may perform a notarial act on a document that is a translation of a document that is in a language that the notary does not understand only if the person performing the translation signs an affidavit containing an oath or affirmation that the translation is accurate and complete. The notarized translation and affidavit shall be attached to the document and shall contain all of the elements described in subsection C.
Arizona Revised Statutes Section 41-328 was amended by adding the following text:
C. Subject to section 41-320, a notary public shall not perform a notarization on a document if the notary is an officer of any named party, if the notary is a party to the document or if the notary will receive any direct material benefit from the transaction that is evidenced by the notarized document that exceeds in value the fees prescribed pursuant to section 41-316.
Problems Created by Revised ARS Section 41-313
What Does “a notary attaches a notarial certificate to a document” Mean?
The new law is a time bomb for anybody who creates, signs or notarizes documents that are notarized by an Arizona notary. For example, what does “If a notary attaches a notarial certificate to a document using a separate sheet of paper” mean? Consider the following scenarios and if the new language applies to any or all of them:
1. Attorney, document preparer or do-it-yourself person prints a document that has a notary certificate on the same page as the page on which the signer signed.
2. Attorney, document preparer or do-it-yourself person prints a document that has a notary certificate on a page that is not the page on which the signer signed.
3. Attorney, document preparer or do-it-yourself person creates a document that does not contain a notary certificate so the notary prepares his/her notary certificate on a separate piece of paper and attaches it to the end of the document.
4. Attorney, document preparer or do-it-yourself person creates a document that does not contain a notary certificate so the notary prepares his/her notary certificate on a separate piece of paper, but the attorney, document preparer or do-it-yourself person rather than the notary actually attaches the notary certificate to the end of the document.
5. The person who creates the document in scenarios 1 & 2 is also the notary who notarizes the document.
A literal reading of the statute would seem to require compliance with the new law only in the case of scenarios 3 & 5, but we will not know for sure until an Arizona appellate court tells us what this phrase means years from now.
Practical Tip #1: The notary certificate should contain a statement that the notary certificate was or was not attached to the document by the notary.
Practical Tip #2: If the notary is the same person who prepared the document, the document preparer should play it safe and assume that Section 41-313.C will apply and include the required information in the notary certificate.
Mistakes & Omissions in the Notary Certificate
This new notary law is a very bad law because it demands attention to detail and creates many opportunities for the document preparer and the notary to inadvertently invalidate a notarized document. The new law says that when it applies, the notary block must contain “the title or type of document, the document date, the number of pages of the document and any additional signers other than those named in the notarial certificate.” This new require gives the notary a lot of ways to create an incorrect notary certificate.
The new law does not give us any guidance on the legal significance of the notarized document if one or more of the following errors occurs in the notary certificate:
1. The title or type of document stated in the notary certificate is different from the actual title or type of document? For example, what if the title of the document is “Promissory Note,” but the notary certificate refers to a “Note”? What if the name or title is correct, but misspelled?
2. The document date is incorrect? What if the document date is off by one day, a month or the year is incorrect?
3. The number of pages in the document is incorrect? The new law does not tell us how we calculate the number of pages in a document. In counting the number of pages does the notary count a cover page, the pages in a table of contents and pages in schedules or exhibits? The document preparer, the signer and the notary should actually count all of the pages of the document because I do not recommend relying on the page numbers on the last page of the document.
4. The name of one or more additional signers is not spelled correctly.
5. An additional signer’s name is omitted?
Does this law create new liability for lawyers, especially estate planning lawyers whose practice involves many notarized documents? Apparently Arizona lawyers can now be sued years after a document was signed when the client or family is told the notary certificate failed to comply with Section 41-313 and therefore the document is invalid.
Practical Tip #3: In addition to stating how many pages are in the document, the notary certificate should “itemize” page numbers. For example, the notary certificate should say “The
The Law Should Cause all Arizona Notaries to Cease Providing Notary Services
As a practical matter, why would anybody want to be a notary in Arizona with this law? Aren’t all notaries now liable for damages if they fail to satisfy Section 41-313? If you are an Arizona notary, do you want to take the chance of being sued because a document you notarized fails to comply with Section 41-313.C? Can a notary get insurance for this type of liability? If so, what are the coverage limits?
Most notaries do not charge for their services, but they may. Arizona Revised Statutes Section 41-316 states that “The secretary of state shall establish fees that notaries public may charge for notarial acts.” The Arizona Secretary of State’s rule R2-12-1102 allows Arizona notaries to charge as much as $2 for each notary. The compensation that an Arizona notary might receive for notarizing a document does not justify the risk of being sued for committing “notary malpractice.”
Tens of Thousands of Documents Will Be Invalid
Consider what this new law means for the tens of thousands of do-it-yourselfers who don’t have a clue about this law. There are going to be a lot of estate planning documents created by 99% of the public, including Arizona notaries, who will be clueless about the requirements of revised Section 41-313. The good news is that the vast majority of third parties who view a notarized document won’t know of Section 41-313 so they won’t question the validity of the document.
This new law is a wonderful revenue generator for Arizona lawyers, especially estate planning lawyers like me. Every document notarized by an Arizona notary should be reviewed by an Arizona attorney who is experienced with Section 41-313. For example, nobody should ever create their own last Will & Testament without having it reviewed by an Arizona “notary law attorney” because the family will not know until after the signer dies that the Will is invalid.
Arizona Revised Statutes Section Section 41-313.C is a trial lawyers dream, but a nightmare for the unsuspecting public, lawyers and Arizona notaries.
Tell Your Arizona Legislators To Repeal or Fix This New Law
Senate Bill 1230 was sponsored by Republican Representative Michelle Reagan. Her contact information is: Phone Number: (602) 926-5828; Fax Number: (602) 417-3255; [email protected]. I suggest you send her a letter or email message alerting her to the problems with the new law and ask that she repeal or fix the new law. Do the same for your state senator or representative. See the names and contact information for Arizona senators and house members.
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