Key Takeaways
- Notaries have the authority and duty to refuse improper notarizations
- Must refuse if signer cannot be properly identified
- Must refuse if signer appears incompetent or under duress
- Must refuse if notary has reason to believe fraud is involved
- Refusing an improper notarization protects the notary from liability
Authority to Refuse Notarization
Under HRS Section 456-22, Hawaii notaries have the authority to refuse to perform notarial acts under certain circumstances. In many cases, refusal is not just permitted but required.
Grounds for Refusal
A notary may refuse to notarize if:
| Reason | Explanation |
|---|---|
| Cannot identify signer | Signer lacks acceptable ID and cannot be identified through other means |
| Signer appears incompetent | Appears mentally incapable of understanding the transaction |
| Signs of coercion/duress | Signer appears forced, threatened, or intimidated |
| Document appears fraudulent | Notary has reason to believe fraud is involved |
| Incomplete document | Document has blank spaces that should be completed |
| Signer is unwilling | Signer does not want to sign or acknowledge |
| Notary's own interest | Notary has disqualifying financial interest |
When Refusal is Required
In some situations, the notary MUST refuse:
| Situation | Action Required |
|---|---|
| Cannot positively identify signer | MUST refuse |
| Document is blank or incomplete | MUST refuse |
| Signer does not personally appear | MUST refuse |
| Notary has direct financial interest | MUST refuse |
| Signer appears to be coerced | MUST refuse |
Assessing Signer Competence
Signs that may indicate incompetence:
| Warning Sign | Consideration |
|---|---|
| Cannot respond to questions | May lack understanding |
| Appears heavily intoxicated | May lack capacity |
| Seems confused about document | May not understand transaction |
| Cannot communicate | Cannot acknowledge understanding |
| Third party answers for signer | Signer may not be acting willingly |
Note: Notaries are not qualified to make medical determinations. When in doubt, it is appropriate to refuse and suggest the signer return when they can clearly demonstrate understanding.
Assessing Willingness
Signs of coercion or duress:
| Warning Sign | Action |
|---|---|
| Signer says they don't want to sign | Do not notarize |
| Third party pressuring signer | Consider refusing |
| Signer appears frightened | Ask third parties to leave, assess |
| Signer is rushed or confused | Take time, ensure willingness |
How to Refuse
When refusing a notarization:
- Be professional - Polite but firm
- Explain briefly - State you cannot complete the notarization
- Do not argue - Your decision is final
- Document the refusal - Note in your journal if appropriate
- Suggest alternatives - They may be able to resolve the issue
What to Say
| Situation | Response |
|---|---|
| No acceptable ID | "I cannot notarize without proper identification." |
| Signer appears coerced | "I need to speak with you privately before proceeding." |
| Incomplete document | "I cannot notarize until the document is complete." |
| Suspicion of fraud | "I am not able to perform this notarization." |
Protection for Refusing
A notary who refuses based on reasonable grounds:
- Is protected from liability for the refusal
- Has fulfilled their duty to prevent improper notarization
- May be subject to review if refusal was unreasonable
On the Exam
Remember:
- Notaries have authority AND duty to refuse improper notarizations
- Key grounds: no ID, incompetence, coercion, fraud, incomplete docs
- Refusal protects the notary from liability
- Document refusals when appropriate
A signer appears at your office but cannot provide acceptable identification and you do not know them. What should you do?
During a notarization, you observe that the signer appears to be under significant pressure from another person in the room. What should you do?