A Texas notary public is responsible for serving as an unbiased and disinterested witness to the signing of important legal documents. This means a Texas notary is tasked with the important role of ensuring that a signer’s identity has been verified and that he or she signed a particular document willingly and without coercion. Given a notary’s responsibility to play an unbiased and disinterested role, can a Texas notary perform notarizations for members of his or her family? This article will explore that pertinent question.
A Texas Notary Must Be an Impartial Witness
Texas notaries are expected to act as impartial witnesses. To be impartial, a Texas notary may not gain in any way when performing a notarial act, other than by collecting the notarial fees allowed by Texas statute. The Oxford dictionary defines impartial as “treating all rivals and disputants equally” and uses synonyms including “unbiased,” “neutral,” “uninvolved,” “disinterested,” and “dispassionate.” It is difficult for any individual to remain neutral and unbiased, however, when a family member is involved in a transaction. Therefore, in order to serve as an impartial witness, a Texas notary should be unrelated to the document signer whose signature he or she is witnessing.
Impartiality is a crucial requirement for notarization because it ensures the integrity of the notarized document and deters fraudulent transactions. Furthermore, a Texas notary’s impartiality inspires trust, and trust is the foundation of the notarial process. In order to protect the transaction, a Texas notary must avoid even the faintest bias or appearance of impropriety.
To remain a trusted public official, a Texas notary must be entirely honest in his or her dealings. A Texas notary should not make exceptions to the rules or allow for so-called “gray areas.”
A Texas Notary Must Avoid Conflicts of Interest
In order to maintain integrity and inspire confidence in the public, a Texas notary must also avoid conflicts of interest. It is not unusual for a family member to be the beneficiary of a document being notarized by another family member, and thus Texas notaries should be wary when asked to perform notarizations for family members.
While there is no specific legal prohibition in Texas statute against notarizing a spouse's or relative’s signature or notarizing for a spouse or relative’s business, it is imperative that a Texas notary not do so if he or she is a party to the instrument or has a financial or beneficial interest in the transaction.
A Texas notary may ask, “What constitutes a financial interest?” While Texas notary statutes do not explicitly detail the answer to this question, it is not difficult to determine whether a notary public is a party to or has a financial interest in the transaction. For instance, a notary could not notarize a will in which he or she was named as a beneficiary or notarize the signatures of those involved in a transaction for which he receives a sales commission.
Notary law does, however, authorizes a Texas notary who is an employee to notarize the signature of his or her employer. For instance, the Texas Civil Practice and Remedies Code, in §121.002, allows an employee of a corporation to take an acknowledgment of a written instrument in which the corporation has an interest. The Texas Finance Code, in §199.002, even states that a notary public is not disqualified from performing a notarization solely because of the notary public's ownership of stock or participation in or employment by a state trust company that has an interest in the underlying transaction. However, Texas law prohibits a corporation shareholder from notarizing corporate documents if the notary owns more than one-tenth of one percent of the corporation's issued and outstanding stock.
The individual facts in each situation will determine the appropriateness of a notary’s action, but it is always best to err on the side of caution.
Avoid Notarizing for Family Members
Erring on the side of caution means avoiding performing notarizations for family members. The American Association of Notaries (AAN) recommends that a Texas notary avoid notarizing documents for a spouse, son, daughter, mother, father, in-law, or other close family member, even though this action is not explicitly prohibited by Texas law. AAN advises refraining from such notarizations even if the notary has no interest in the document being notarized. This is because it is virtually impossible for a notary to act impartially toward a member of his or her own family. It is easy to fall prey to the temptation to act in a manner that benefits one’s own relatives.
What, then, should you do if a family member asks you to notarize a document? You should refuse to perform the service, but you can soften the refusal by providing him or her with a list of reliable Texas notaries who can assist. Preparing a list of a few nearby notaries will help you to maintain your relationship while also declining to perform a notarization that may contain the appearance of irregularity or conflict of interest.
Should you have any questions or require clarification about avoiding notarizations for family members, do not hesitate to contact AAN by calling (713)-644-2299 or visiting our website at www.texasnotary.com.
The American Association of Notaries is a leading provider of Texas notary bonds, Texas notary errors and omissions insurance policies, and Texas notary supplies.
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