When a Notary notarize a signature, the Notary 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 take an acknowledgment, the document signer must personally appear before the notary public, and declare that he or she has signed the document voluntarily. The Notary Public 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, the Notary should refuse to notarize and perhaps refer the person to an attorney for legal advice.
The Notary Public 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, the Notary should then complete a 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 the Notary, 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, the Notary may simply ask, “Do you swear (or affirm) that the information contained in this document is true?” After receiving an affirmative answer, the Notary must complete a proper notarial certificate indicating that an oath or affirmation was taken.
If the document the Notary are asked to notarize contains a prepared notarial certificate, look for the key words “acknowledged” or “sworn to” to tell the Notary 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.
NOTE: The form certificates used when taking an acknowledgment or administering an oath are found in the notary law, section 117.05(13), Florida Statutes.