One of the frustrating things about being a Tennessee Notary Public is that there are many questions for which the statutory law and the Tennessee Notary Handbook do not provide answers. So, I have been compiling a list that I would like to submit to the Tennessee Attorney General and/or the Secretary of State. If you are a Tennessee Notary Public and you have questions not included here, please share your questions in the comments.
Questions for the Tennessee Attorney General or Secretary of State
by Tim Gatewood
As the TN AG Opinion 07-157 states that a Tennessee Notary Public is a state official, does that mean that we can submit questions directly to your office? Or do we need to submit them to some other office and ask them to forward them to you?
Is an I-9 Form considered an employment document or an immigration document? If it is an immigration document, does that mean that it can not be completed except by those who are allowed to do immigration consulting work?
Are there are laws or rules or regulations against notaries public accepting unsolicited tips?
Can a TN Notary Public affix their seal to a Notary Identity Certification or a contract or any other document to “verify” their commission or status? Or does the law limit the use of a notary seal to only being used when notarizing documents?
In general, how do we resolve discrepancies between the signer’s name as it appears on their identification document (i.d.) and their name as shown on documents? If Senior or other suffixes appear on the document but not on their i.d., does that mean that we can not proceed with the notarization? What about nicknames? Missing middle initial or middle name? Different middle name for married woman (such as maiden, previous married name, actual middle name) ? Are we allowed to accept supplemental i.d. (not in the list in the statute) that shows the missing elements of their names?
Is there a special process or procedure for signature by mark in Tennessee? Or is an X considered a signature without anything added? (This was mentioned as a common law procedure in a TN AG Op, possibly the one about signing a durable POA when the signer has a disability such that they can not actually sign.) Is this signature by mark or using an X a recognized procedure in TN and, if so, what are the steps involved?
If a document to be notarized shows that the signer is signing with capacity (attorney-in-fact, personal representative of an estate, trustee of a trust, grantor of a trust, corporate officer, etc), does the notary need to see proof of that capacity in order to sign the corporate acknowledge certificate? Is a notary allowed to use (or sign if pre-printed) a standard (non-corporate) acknowledgment when the body of the document or the circumstances otherwise indicate that the signer is signing with a capacity other than their own as an individual?
Is “husband and wife” considered a capacity? Does a notary need to see proof before they can sign a notary certificate that states the signers were husband and wife?
If the document has a standard jurat which says they were sworn, but they choose to affirm instead, does the notary have to correct the jurat to show that? Should the notary make note of this affirmation in their journal? Or both?
What obligation does a notary (NSA or otherwise) have with respect to excise tax in Tennessee?
What obligation does a notary who handles assignments for out-of-state firms or individuals have to see if their clients are registered to do business in Tennessee?
Does the order of names in an AKA statement matter? Are we required to see proof of all the names in an AKA or just one of them? How about an NKA or FKA?
Does an attorney-in-fact have the authority to sign a sworn statement for the principal? If so, does the jurat need to indicate that they did sign it in such capacity? If the AIF lacks such authority, what actions should a notary public take when presented with a sworn statement to be signed by an AIF in such capacity?
While it is widely reported that a notary public bears no responsibility for the truthfulness of the statements made within the body of a document presented to them for notarization (with the signer alone bearing that responsibility), is this an actual rule of law in Tennessee? If so, does it apply when the signer states to the notary that some or all of the contents of the body of the document are not true? Would your answer change if the document indicates that it is being sworn to or the statements contained within it are made under oath (with a jurat or a notary acknowledgement certificate accompanying the document) ?
If the signer does not state that some or all of the contents are not true, yet the notary can tell from the circumstances that they must be untrue (or has reasonable grounds to believe that they are untrue), should the notary proceed on the basis that the responsibility rests on the signer — or refuse to proceed with the notarization on the basis that a public official should never assist with what they believe to be fraud?
Is a Tenn notary allowed to accept a driver’s license or state non-driver i.d. or US Passport or Military I.D. with holes punched in it as a form of i.d., assuming it is otherwise compliant with the description in the law? Or do the holes which mark it as invalid for police purposes also make it unacceptable for notary purposes?
If the notary acknowledgement certificate states the signer of the document was “known to be” the person described in and who executed the document, does this mean the signer must be personally known to the notary as defined in state law?
If so and the signer is not personally known to the notary, does the notary have the authority and the duty to correct the notary certificate to state the signer was “proven on the basis of satisfactory evidence to be” ? Or must the notary refuse to notarize the document in such instances?
Did the 2014 law (HB2387 – Public Chapter 805, passed in April 2014) change your opinion about whether notaries are state or county officials? If not, what impact does it have? What was the point of the wording in it about approving rather than appointing (seeing as how the Governor still is involved in the process and the county does not issue a commission until they receive the certificate from the Governor) ?
In your opinion 10-89, you laid out a procedure for what to do when a signer of a durable power of attorney is unable to sign in their own hand. Is this procedure acceptable for all notarized documents that are executed in Tennessee? If not, what are the limits of when this procedure applies? And what procedure should be followed in those circumstances that are not covered?
In your opinion 81-555, you stated that, for that specific instance, the applicable law granted authority to whoever made a copy of a document to certify the copy. Your opinion specifically mentioned notaries as one party who could certify the copy under those circumstances. As certifying copies is one of the services that the public frequently requests from notaries, please answer the following: is certifying copies an inherent power of a notary public except where otherwise restricted by law? If so, what are the restrictions? If it is not an inherent power of a Tennessee notary public to certify copies, how should a notary public respond when requested to certify a copy ?
If the body of a document presented to a Tennessee Notary Public states that the signer was duly sworn or that they are making the statements contained in it under oath, yet the notary certificate is an acknowledgement, is the notary expected or required to administer an oath ?
If so, should a jurat be added to the document to indicate that such was done? Or should a jurat be substituted for the pre-printed notary acknowledgement, rather than added to the same? Or, alternatively, should wording be added to the notary acknowledgement certificate to so indicate? If no oath is to be given under such circumstances, should wording be added to the notary acknowledgement certificate to indicate that, despite the language of the body of the document, no oath was given?
In short, how is a conflict between the language of the body of the document and the statements in the notary certificate to be resolved?
Under what circumstances is a notary public allowed to refuse o notarize in Tennessee? Does the reasonable and lawful standard apply? Do federal rules such as HIPAA, EEOC, or others have an impact on when we can say no? Are there state laws or rules that require us to proceed? In Acuff v. O’Linger (56 S.W. 3d 527 (2001), the Tennessee Court of Appeals held that a notary acts in a judicial capacity in determining the facts stated in a notary certificate. Once the facts are determined by the notary to be such that they can proceed, are they required to do so? Are there limits on the judgment of the notary as to what the facts are?
Is a notary journal considered a public record? If so, under what circumstances must it be shown to members of the public? Are we allowed to charge a fee for copies? Can we certify the copies? Do we redact NPPI on the copies? Does someone seeking to view the contents of a notary journal make the request via Freedom of Information Act form ? If so, is that sent to the SOS who then forwards it to the notary? Or what is the procedure? When I cease to be a notary public, am I required to turn over my notary journals to the county clerk’s office? If so, is there anything in state law about their retention and storage policy?
Seal of the State of Tennessee