HomeMy WebLinkAbout07-11-08 New Requirements for Notaries Public in the State of Hawaii .►t'°_`'+. Lincoln S.T.Ashida
Harry Kim �
. Co oration Counsel
'i''"
Mayor
Gerald Takase
Assistant Corporation
Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 - Hilo,Hawaii 96720-4262 - (808)961-8251 - Fax(808)961-8622
July 11, 2008
Sent via email; no hard copy will follow
Corporation Counsel Numbered Memorandum 2008-02
Memorandum
TO: OFFICE OF THE MAYOR
HAWAII COUNTY COUNCIL
OFFICE OF THE COUNTY CLERK
ALL COUNTY DEPARTMENTS AND AGENCIES
ALL COUNTY BOARDS AND COMMISSIONS
FROM: LINCOLN S. T. ASHIDA
Corporation Counsel
RE: New Requirements for Notaries Public in the State of Hawaii
On May 5, 2008, Chapter 5-11 of the Hawaii Administrative Rules relating
to notaries public was adopted. The new rules include significant changes to the
predecessor rules that had been in effect since 1959 (and amended in 1964).
All notaries public in our County of Hawaii are advised to familiarize
themselves with the new rules and requirements.
One significant change is found at Section 5-11-8, that provides as
follows:
Acknowledgment; iurats. Every acknowledgment or jurat shall be evidenced by a
certificate signed and dated by a notary public. The certificate shall include the
printed name of the notary public,the official stamp or seal of the notary public,
identification of the jurisdiction in which the notarial act is performed,
identification or description of the document being notarized,which shall be close
in proximity to the acknowledgment or jurat, and then number of pages and date
of such document.
Hawaii County is an Equal Opportunity Employer and Provider
This means our County contracts and any other document requiring a
notarial act must include this certificate. The enclosed notice issued by the
Department of the Attorney General contains a sample certificate on the first
page.
Department representatives who prepare and notarize our County
contracts should familiarize themselves with this requirement to ensure
compliance. The enclosed FAQ sheet includes the following that may be of
assistance in clarifying this new requirement:
QUESTION 9: What information should be in the certificate?
ANSWER: HAR§ 5-11-8 states that the notary's "acknowledgment or jurat shall
be evidenced by a certificate signed and dated by the notary." The information in
the certificate includes the printed name of the notary,the official stamp or seal of
the notary,identification of the jurisdiction in which the notarization is
performed, identification or description of the document being notarized in close
proximity to the acknowledgment or jurat, and the number of pages and date of
the notarized document. The information can be included within the
jurat/acknowledgment itself(for example,one form of a particular type of
notarization could be: "This 5-page [identification or description of notarized
document], dated ,was subscribed and sworn to before me this day
of ,2008, in the First Circuit of the State of Hawaii,by John H. Doe.")The
information could also be in a separate certificate.An example of a separate
certificate is included on our"Important Information"page,which accompanies
these questions and answers. There is not,however,only one acceptable form or
format for the certificate,as long as the information specified in the rule is
provided.
If you have any questions regarding these new requirements, you are
encouraged to contact the State representatives at the number and email
address listed in the enclosed notice. You may also contact our office if you
have any questions concerning procedures that affect our County.
Encl.
LF: Other Communication/Corporation Counsel/LSA Outgoing/2008/Numbered Memorandums/07-11-08 Numbered
Memorandum 2008-02/LSAmr
2
DEPARTMENT OF THE ATTORNEY GENERAL
IMPORTANT INFORMATION FOR NOTARIES
Chapter 5-11, Hawaii Administrative Rules ("HAR"), the rules governing the practices
and procedures of notaries commissioned in Hawaii, was adopted on and is effective
as of May 5, 2008. You may view HAR Chapter 5-11 at the Notary Public website:
http://hawaii.gov/ag/notary/
Many provisions of this chapter include new requirements for notaries, including that the
commission number of the notary public must be inscribed on the notary's official seal or
stamp (see HAR § 5-11-5). This means that each notary must order a new seal or
stamp. In addition, every acknowledgment or jurat shall be evidenced by a certificate
signed and dated by the notary. "The certificate shall include the printed name of the
notary public, the official stamp or seal of the notary public, identification of the
jurisdiction in which the notarial act is performed, identification or description of the
document being notarized, which shall be close in proximity to the acknowledgment or
jurat, and the number of pages and date of such document." HAR§ 5-11-8.
You may incorporate the information in the jurat or acknowledgment (see our
"Frequently Asked Questions About The New Notary Rules" for an example), or you
may create your own certificate, as long as you comply with HAR § 5-11-8. Below is a
sample certificate which you may stamp next to an acknowledgment or jurat to comply
with HAR§ 5-11-8.
Doc. Date: # Pages:
Notary Name: Circuit
Doc. Description:
Notary Signature Date
These are just a few of the important changes addressed by the new rules, and we
encourage you to download and read the complete chapter.
A
Act 175, Session laws of Hawaii 2008, which takes effect January 1, 2009,
addresses many important changes for notaries, and we encourage you to download
and read this Act also.
Enclosed is a FAQ sheet. If you have further questions after reading the FAQ sheet,
HAR Chapter 5-11, and Act 175, you may call us at 586-1180 or e-mail us at
ATG.notary(a)hawaii.gov. Thank you for your attention to these new changes in the
rules and laws governing notaries.
JUNE 25,2008
l
N/ Y`
LINDA LINGLE MARK J.BENNETT
GOVERNOR
s �c," ATTORNEY GENERAL
�y; - f�
LISA M.GINOZA
STATE OF HAWAII FIRST DEPUTY ATTORNEY GENERAL
DEPARTMENT OF THE ATTORNEY GENERAL
425 QUEEN STREET
HONOLULU,HAWAII 96813
(808)586-1500
FREQUENTLY ASKED QUESTIONS ABOUT THE NEW NOTARY RULES
QUESTION 1: Why wasn't I individually notified before the new rules went into effect?
ANSWER: The new rules were adopted in accordance with the Hawaii Administrative
Procedure Act, Haw. Rev. Stat. Ch. 91. Notices of the public hearing describing the
new rules were published in five newspapers of general circulation on February 29,
2008 (The Garden Isle), March 2, 2008 (Honolulu Star-Bulletin, The Maui News, and
West Hawaii Today), and March 9, 2008 (Hawaii Tribune-Herald) before Chapter 5-11,
Hawaii Administrative Rules (HAR), went into effect. The duly noticed public hearing
concerning the rules was held on April 14, 2008, at the Department of the Attorney
General, 425 Queen Street, Honolulu, HI 96813. Although all legally required notice
requirements were met, we apologize that our notification to notaries was not better-- it
should have been better. We did some outreach, but not enough. We are currently
sending each active notary an informational sheet and these questions and answers,
and we are working with the Hawaii State Bar Association and various professionals
and businesses that regularly use notaries to further disseminate the new requirements.
QUESTION 2: What is the effective date of the new rules? Is there also a new notary
statute?
ANSWER: The new rules became effective on May 5, 2008. Act 175, Session Laws
Hawaii 2008, which also concerns notaries, will become effective on January 1, 2009.
We encourage you to read a complete copy of Act 175 and HAR Chapter 5-11, both of
which are available at our notary website: http://hawaii.gov/ag/notary/.
QUESTION 3: Why do we need rules that change the way documents are notarized?
ANSWER: The Department of the Attorney General and the Legislature received
complaints of fraud in connection with notarized documents, including reports of"jurat"
pages being detached from their original document and then "switched" or reattached to
another document for fraudulent purposes. The Legislature found that "there is an
alarming increase in the alteration of notarized documents for the purpose of identity
theft and fraud." One purpose of the new rules is to help prevent fraudulent use of
notarized documents by, among other things, having the notary list the number of pages
of each notarized document and providing an identification or description of the
notarized document"in close proximity" to the jurat or acknowledgment.
QUESTION 4: 1 notarized documents using an acknowledgment orjurat, and my
signature, seal, date, venue (City and County of Honolulu), and commission expiration
date, but without separately listing some of the other information specified in the new
rules, such as the number of pages in the document. Are the documents I notarized
valid and validly notarized?
ANSWER: The documents are valid and validly notarized, unless the acknowledgment
or jurat was fraudulent or contained a misrepresentation, or there was a defect in the
document itself. We believe the law on this subject is that defects in the manner of
notarization of a document do not affect the document's validity. We also believe that
if you notarized a document with an acknowledgment or jurat, and your signature,
seal/stamp, date, venue, and commission expiration date, the notarization is valid, and
omitting newly specified information (such as the number of pages in the document or
a separate description of the document)does not affect the validity of the notarization.
Nor does incorrectly counting the number of pages in the document affect the validity of
the notarization.
QUESTION 5: The new notary rules require that my seal or stamp have my
commission number on it. Can I still use my current seal or stamp, which does not have
my commission number, until I get my new one? Why is the commission number now
required on all seals and stamps?
ANSWER: HAR § 5-11-5 requires that you "obtain and keep" an official seal or stamp
which includes, among other information, your commission number. You should order a
new seal or stamp with your commission number immediately, but we understand it may
take some time before you actually obtain your new seal or stamp, and you may use
your old seal or stamp until you obtain your new one. We believe that requiring the
commission number on the notary seal and notary stamp, as many jurisdictions require,
will help fight fraud involving notarized documents.
QUESTION 6: 1 notarized a document with a seal/stamp that did not have my
commission number on it. Was that document validly notarized?
ANSWER: Yes, we believe it was validly notarized. Although each notary is required to
comply with the new rules, and to obtain and keep a new seal or stamp, nothing in the
rules states or indicates that a document notarized using an old seal or stamp was
invalidly notarized.
QUESTION 7: What should I do with my old seal or stamp?
ANSWER: Neither the law nor the rules requires you to turn in your old seal or stamp,
but you will need to turn it in to the Notary Public Office, along with your new seal or
stamp, once you stop being a notary. If you wish, however, you may mail or hand-
deliver your old seal or stamp to the Department of the Attorney General Notary Public
Office, 425 Queen Street, Honolulu, HI 96813.
DEPARTMENT OF THE ATTORNEY GENERAL
FREQUENTLY ASKED QUESTIONS ABOUT THE NEW NOTARY RULES
JUNE 25,2008
PAGE 2
QUESTION 8: Do I need to submit an impression of my new seal or stamp to the
Circuit Court where I reside?
ANSWER: Yes. Haw. Rev. Stat. §456-4 requires that each notary file an impression of
the notary's seal/stamp with the Circuit Court where the notary resides. You will need to
file an impression of your new seal or stamp with the Circuit Court to replace the
impression of your old seal or stamp that you now have on file with the Circuit Court.
You should also mail or hand-deliver an impression of your new seal or stamp to the
Department of the Attorney General Notary Public Office at 425 Queen Street,
Honolulu, HI 96813, for our files.
QUESTION 9: What information should be in the certificate?
ANSWER: HAR § 5-11-8 states that the notary's "acknowledgment or jurat shall be
evidenced by a certificate signed and dated by the notary." The information in the
certificate includes the printed name of the notary, the official stamp or seal of the
notary, identification of the jurisdiction in which the notarization is performed,
identification or description of the document being notarized in close proximity to the
acknowledgment or jurat, and the number of pages and date of the notarized document.
The information can be included within the jurat/acknowledgment itself(for example,
one form of a particular type of notarization could be: "This 5-page [identification or
description of notarized document], dated , was subscribed and sworn to
before me this day of , 2008, in the First Circuit of the State of Hawaii, by
John H. Doe.") The information could also be in a separate certificate. An example of a
separate certificate is included on our"Important Information" page, which accompanies
these questions and answers. There is not, however, only one acceptable form or
format for the certificate, as long as the information specified in the rule is provided.
QUESTION 10: Do I need to apply my seal or stamp to the certificate?
ANSWER: If the certificate is separate from the jurat or acknowledgment itself, it needs
to be separately sealed or stamped, as in the example on our"Important Information"
page. However, as noted above, the certificate does not need to be separate from the
jurat or acknowledgment, as long as the information specified in HAR§ 5-11-8 is
provided.
QUESTION 11: What if there is no room for the notary certificate on the page with the
jurat/acknowledgment?
ANSWER: HAR § 5-11-8 states that the description of the document being notarized be
"in close proximity to the acknowledgment or jurat." It is best to include the description
of the document on the same page and in "close proximity" to or included in the
acknowledgment or jurat. If you use a separate certificate, and there is no room for that
certificate on the page on which the acknowledgment or jurat is contained, indicate on
that page that there is a notary certificate on the next page, such as by typing: "Notary
Certificate on next page."
DEPARTMENT OF THE ATTORNEY GENERAL
FREQUENTLY ASKED QUESTIONS ABOUT THE NEW NOTARY RULES
JUNE 25,2008
PAGE 3
QUESTION 12: Can I charge for the notary certificate, above and beyond allowed
fees?
ANSWER: No, such an additional charge is not permitted.
QUESTION 13: What should I write on the certificate for the date of a document that is
undated?
ANSWER: You should write "undated at time of notarization."
QUESTION 14: Does HAR Chapter 5-11 or Act 175 have other new provisions relating
to notaries in addition to those discussed in these FAQs?
ANSWER: Yes. We suggest that you read HAR Chapter 5-11 and Act 175 in full.
QUESTION 15: Whom can I contact if I have more questions?
ANSWER: You may call Deputy Attorney General Shari Wong or Supervising Deputy
Attorney General Deborah Emerson at 586-1180, or you may e-mail them at
ATG.notary @hawaii.gov.
DEPARTMENT OF THE ATTORNEY GENERAL
FREQUENTLY ASKED QUESTIONS ABOUT THE NEW NOTARY RULES
JUNE 25,2008
PAGE 4