By Shannon N. Scheloske
In late December 2003, Michigan enacted a new law governing notaries which becomes effective April 1, 2004 (Public Act 238 of 2003). This article will summarize some of the changes from the prior law.
These are some of the more significant changes. A notary public may:
- NOT sign where he/she has a conflict of interest (e.g. having a direct financial or beneficial interest or being a party to the transaction);
- NOT perform a notarial act for a spouse, domestic partner, descendant or sibling, including in-laws, steps or half relatives; and
- NOT perform a notarial act on a record that contains a blank space.
The new statute defines the term “notarial acts” as taking acknowledgments, administering oaths and affirmations, and witnessing or attesting signatures.
New Standards
Michigan notaries should pay special attention to the provisions relating to witnessing and attesting signatures because the previous notary statute in Michigan did not contain specific provisions on this issue. The new provisions include the following standards relating to how notaries may witness or attest a signature, or take an acknowledgment:
- When performing a notarial act notaries must, either from personal knowledge or satisfactory evidence, determine that the person appearing before them is the person whose signature is on record, is being verified, or is named in the record;
- Satisfactory evidence exists when (a) the person signing is personally known to the notary, (b) the person signing is identified upon the oath or affirmation of a credible witness personally known to the notary, or (c) the person signing is identified by a current license, ID card, or other record issued by the federal or state government and containing the person’s picture and signature; and
- In all verifications upon oath or affirmation and witnessing and attesting to signatures, notaries must require the person signing the record sign in the presence of the notary.
The new Michigan notary public act provides for revised “administrative” features, e.g. new reporting and operational duties. These include:
- Applying to the secretary of state for appointment as a notary;
- Residing in the State of Michigan (previously notaries were required to live in the county for which a commission was sought);
- Reading the new statute before performing the first notarial act after April 1, 2004;
- Immediately applying for a corrected notary public commission for a change in name, residence or business address, or other changes or errors as specified in the statute;
- Notifying the secretary of state and the county clerk of his or her appointment, upon any change in the factual information contained in the notary’s application;
- Conspicuously displaying a sign or expressly advising a signer of the fees allowed by law ($10 for any individual transaction or notarial act); and
- Printing, typing, or stamping the following on each document on which the notary performed a notarial act: “Notary public, State of Michigan, County of __________, My Commission expires __________, Acting in the County of ___________”.
Notarial Offenses and Penalties
Notaries are also advised to pay close attention to the new provision setting forth 17 specific notarial offenses, such as acts of dishonesty, fraud, deceit, failing to perform notarial duties in accordance with this act or charging higher fees than the statute allows, for which penalties can be imposed. In addition to creating the specific offenses listed above, the new act also provides for strict penalties for such offenses, such as a civil fine, payment of restitution to any injured party, and/or suspension or revocation of appointment.
Employers Can Be Held Liable
Importantly, a notary public’s employer is liable for damages to people injured by official misconduct of a notary public if (a) the notary was acting within the actual or apparent scope of employment and (b) the employer knew of the misconduct and consented to or permitted it.
For further information regarding these matters or for a copy of the statute, please contact Ms. Scheloske at 248.619.2599 or click here to send an email.
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