Understanding Oaths and Acknowledgments

The Governor’s Notary Section answers hundreds of telephone inquiries every week regarding the notary law and proper notarial procedures. In talking with notaries, it is surprising how many of them do not understand the basic act of “notarizing a signature.” 
Many incorrectly assume that they are just verifying identification and witnessing a signature. But, the act of notarization is much different. 
When you notarize a signature, you must perform one of two official notarial acts: take an acknowledgment from or administer an oath (or affirmation) to the document signer. These two acts have different purposes. The lack of understanding of these basic duties causes confusion and often leads to errors in notarizations, even among the most experienced notaries. 
To make an acknowledgment, the document signer must personally appear before you, the notary public, and declare that he or she has signed the document voluntarily. You should ensure that the signer understands the document and has not been coerced into signing. If there is any question about the signer’s willingness to execute the document or his or her understanding of the contents of the document, you should refuse to notarize and perhaps refer the person to an attorney for legal advice. 
 

You may want to ask the signer, “Do you acknowledge that this is your signature and that you are executing this document of your own free will?” If the answer is yes, you should then complete certificate which states that the execution of the document was acknowledged by the signer. Documents typically requiring an acknowledgment include deeds, mortgages, contracts, and powers of attorney (except those pertaining to motor vehicle titles). 
 

An oath or affirmation is administered to a document signer when the signer is required to make a sworn statement about certain facts. The signer personally appears before you to swear (or affirm) to you, an officer duly appointed to administer oaths, that the information contained in the document is true. A person who makes a false oath or affirmation is subject to criminal charges for perjury. Sworn statements are commonly used in affidavits, depositions, and applications. A notarization requiring an oath begins with the administration of an oath or affirmation. 

 The courts have held that there should be a verbal exchange between the notary and the document signer in which the signer indicates that he or she is taking an oath. An oath similar to one administered in court by a judge or bailiff would be sufficient. Or, you may simply ask, “Do you swear (or affirm) that the information contained in this document is true?” After receiving an affirmative answer, you must complete a proper notarial certificate indicating that an oath or affirmation was taken. If the document you are asked to notarize contains a prepared notarial certificate, look for the key words “acknowledged” or “sworn to” to tell you which notarial act is required. If there is no notarial certificate on the document, the signer must direct you whether he or she wants to make an acknowledgment or take an oath. Unless you are an attorney, you are not authorized to advise a person which notarial act is appropriate for the document presented for notarization, and you may not advise the person about the contents of the document. 
In order to correctly perform the duties of your office, you need to understand what it means to “notarize a signature” and the difference between the acknowledgment and the oath. 
NOTE: The form certificates used when taking an acknowledgment or administering an oath are found in the notary law, section 117.05(16), Florida Statutes. 

Five Musts When Using A Credible Witness  

**The Credible Witness must attest to the following.  

Single Credible Witness (Generally for non-ID possessing people) 

When using a credible witness, there MUST be a chain of Personal Knowledge. Notary must personally know Credible Witness who must personally know the Document Signer  
 

Two Credible Witnesses (Generally for signing by Mark) 

The Credible Witnesses must attest to the following:    

Typically the following wording will suffice for Credible Witnesses for Signing By mark. This is only added to the pages that are being notarized. Typically on other pages that are being signed by mark the signer makes the mark and then the TWO CREDIBLE WITNESSES print their names and then sign their names. The original acknowledgement or such other should be marked out and the following format used. This CAN be handwritten in:    

Acknowledgement – Signature by Mark & Two Credible Witnesses   

__________________________________   

(X mark or other symbol by original signer)   

__________________________________   

(Signature and printed name of 1st credible witness)   

__________________________________   

(Signature and printed name of 2nd credible witness)   

_______________________, being unable to write, makes his / her mark in our presence and I, _______________________ at his / her request and in his / her presence wrote his / her name and we hereunto subscribe our names as witness to said mark.   

State of Florida 

County of :   

On _______________, before me, _______________ personally appeared _______________ ( ) personally known to me –or- ( ) proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is / are subscribed to the within instrument and acknowledged to me that he / she / they executed the same in his / her / their authorized capacity (ies) and that by his / her / their signature(s) on the instrument the person (s) or the entity upon behalf of which the person (s) acted, executed the instrument.  

Witness my hand and official seal.   _________________________ 
(Official notary seal)                                    (Notary signature) 

Affidavits

 An affidavit is a common form of sworn statement requiring an oath. Below is the standard form of affidavit. Please note that the affiant is the person making the sworn statement. 

 

AFFIDAVIT STATE OF FLORIDA  COUNTY OF _________________  Before me this day personally appeared ________________________ who, being duly sworn, deposes and says:  (INSERT FACTS TO BE SWORN TO OR AFFIRMED BY THE AFFIANT) Signature of Affiant _________________________  Sworn to (or affirmed) and subscribed before me this ___ day of ___________,  19___ , by ________________________.                  Name of Affiant                                                                     Personally known__________________                                                    OR Produced Identification__________________                                            Type of Identification Produced__________________                        (SEAL)  Notary Signature _____________________________  Print, type or stamp name of notary_________________________

 

Depositions

A deposition is the testimony of a witness, under oath or affirmation, taken outside of court in which lawyers ask oral questions of the witness. The testimony is usually reduced to writing and duly authenticated and is intended to be used in a trial of a civil action or a criminal prosecution. The person giving the testimony is called the deponent. 
Notaries are authorized to administer an oath for a deposition for use in a court case or an investigation. When administering the oath, the notary must require the deponent’s physical presence and properly identify him or her. If the notary keeps a journal or record of notarial acts, the journal entry should be made at this point, including the deponent’s signature. The notary would then administer the oath or affirmation, perhaps by having the deponent raise his or her right hand and asking: 

“Do you swear (or affirm) that the testimony you are about to give in this matter is the truth, the whole truth, and nothing but the truth (so help you, God)?” 

Once an affirmative answer is given, the deponent is now under oath, and the notary’s responsibility is over. Although depositions may be taken over the telephone, the deponent must be in the physical presence of the notary public, or other official authorized to administer oaths, at the time the oath or affirmation is given. There is no exception to the presence requirement, even if the attorneys for both parties stipulate otherwise. (See Attorney General Opinion, No. 92-95, December 23, 1992.) This means that, if you are asked to swear in a person over the phone, you must decline. A notary, or other authorized official, would have to be present with the deponent for the administration of the oath or affirmation. When asked to make a written certificate of the 
notarial act, we suggest that you make a certificate in substantially the form provided below. 

The notary involved has been denied a renewal appointment by the Governor’s Office and both persons have pending criminal charges for the unlicensed practice law. Be careful that you do not overstep your authority when asked to swear in a person for a deposition. The unauthorized practice of law is a serious matter and one that is not taken lightly by the Governor’s Office or the Court. Note: For additional information on the court case, see State v. Foster, 674 So.2d 747 (Fla. 1st DCA 1996). 
 

Attesting to Photocopies

In Florida, notaries are authorized to attest to the trueness of photocopies of certain documents. Although commonly known as certified photocopies, the notary law refers to these documents as attested photocopies. A notary public may make attested photocopies if the following criteria, found in section 117.05(15) of the Florida Statutes, are satisfied:  

 

STATE OF FLORIDA  COUNTY OF __________  On this __________ day of __________, 19__, I attest that the preceding or attached document is a true, exact, complete, and unaltered photocopy made by me of:  (DESCRIPTION OF DOCUMENT)  presented to me by the document's custodian, ________________________,  and, to the best of my knowledge, that the photocopied document is neither a public record nor a publicly recordable document, certified copies of which are available from an official source other than a notary public.                         (SEAL)     Notary Signature _________________________  Print, type or stamp name of notary__________________________

One of the most often asked questions concerning attested photocopies is whether a particular document is a public record. Notaries must make a determination about this question before attesting to the trueness of any photocopy. The following documents are examples of public records, copies of which cannot be attested to by a notary: 

This is not a complete list of public records. If the document is issued by a government entity, the notary should contact that entity to determine whether a certified copy is available. If one is available, then the notary public must decline to make an attested photocopy. Additionally, the notary should ask the person if the document has been filed in a court proceeding or in the official records at the courthouse. 
The following documents can be photocopied from the original (if not officially filed or recorded) and attested to by a notary, because certified copies cannot be obtained from another public official: 

The maximum fee a notary may charge for making an attested photocopy is $10.