What is a Notary?

November 17, 2016
Lindsay M. Schoeneberger

There are a lot of misconceptions and different definitions for a Notary.  In drafting this blog post I found several different definitions, including one from Google that says a Notary is “a person authorized to perform certain legal formalities, especially to draw up contracts, deeds, and other documents for use in other jurisdictions.”  Wikipedia says “[a] Notary is a lawyer (except most of the United States).”  Neither of these are true in Pennsylvania.  So what is a Notary?  Why do you want something notarized?

First, what people generally refer to as a Notary is actually a Notary Public. According to NationalNotary.Org, “[a] Notary Public is an official of integrity appointed by state government —typically by the Secretary of State — to serve the public as an impartial witness in performing a variety of official fraud-deterrent acts related to the signing of important documents.”  Basically, the Notary Public is confirming that the person signing the document is who they say they are, that they are doing so willingly, and that they know what they are signing.  In most cases this is known as an acknowledgment.  This acknowledgement serves a vital purpose on documents like Wills, Deeds, Powers of Attorney, and Trusts.  Real property deeds and powers of attorney must be acknowledged in Pennsylvania if you want to have the document recorded.  Relatively new changes to the power of attorney laws require that the document have an acknowledgment on it in order to even be valid.

Where people generally run into confusion is when they have drawn up some sort of document, had it notarized, and now believe this stamp gives the document extra weight or makes it ironclad.  Unfortunately, that is often times not the case.  For example, let’s say we have Tim and Tina.  Tim and Tina are getting divorced.  They have 3 children.  They draw up an agreement between the two of them regarding the custody of their children.  The agreement states that it can never be modified for any reason.  They go to a Notary Public, prove they are who they say they are, they know what the document says, and that they are willingly signing it.  They get it acknowledged. Tim decides the custodial provisions in the document don’t work for him anymore and he files for custody.

Is he stuck with the agreement because it was notarized?

No. Tim can file for custody because that notarization or acknowledgment makes that document no more binding than if it were not notarized.  Custody agreements can be modified when it is in the best interest of the child.  If there is a defect in the agreement that is being notarized, the notarization will not save the document.

If you are signing a document you think is important enough to have notarized because you want it to hold up, then it is probably best to at least have the document reviewed by an attorney to determine if there are any defects, loopholes, or other issues with the document.

Lindsay Schoeneberger is an attorney at Russell, Krafft and Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Estate Planning.