3.4 Special Identification Situations
Key Takeaways
- A signer who cannot write may sign by mark (X) witnessed by two people who sign their own names; one witness writes the signer's name near the mark
- Documents in a foreign language may be notarized if the notary can communicate with the signer; the notary need not read or translate the document
- A California notary may not use an interpreter for oaths/jurats — the notary must communicate directly with the signer
- A subscribing witness lets a principal who cannot appear be notarized by someone who saw them sign and who appears with acceptable ID
- Notaries must provide reasonable accommodations to signers with disabilities, but communication with the signer must be possible
Edge Cases That Separate Pros from Beginners
A 92-year-old with arthritis can only make a shaky "X." A businessman hands you a contract written entirely in Korean. A principal in the hospital cannot travel to your office. These special situations have specific California procedures, and the exam tests them.
Signature by Mark
When a signer cannot write — due to illiteracy, injury, or disability — California allows them to sign with a mark, usually an "X." The procedure has firm requirements:
| Step | Requirement |
|---|---|
| 1 | The signer makes the mark in the notary's presence |
| 2 | Two witnesses observe the signer make the mark |
| 3 | Both witnesses sign their own names next to the mark |
| 4 | One of the witnesses writes the signer's name beside the mark |
| 5 | The notary records the mark signing in the journal |
The two witnesses are in addition to the notary. The signer still needs to be identified by ID or credible witnesses under the rules in 3.2 and 3.3 — the mark addresses how they sign, not how they are identified.
Example: A man with severe arthritis makes an "X." His daughter writes "John W. Smith, his mark" beside it, and both the daughter and a neighbor sign their own names as witnesses. The notary then completes the notarial act.
Foreign-Language Documents
May you notarize a document you cannot read? Yes — with one firm limit.
| You MAY | You MUST | You DON'T need to |
|---|---|---|
| Notarize a document in any language | Communicate directly with the signer | Read the foreign-language document |
| Perform standard notarial acts | Determine the type of act (acknowledgment vs. jurat) | Translate the document |
| Use an English certificate | Identify the signer with an acceptable ID/witnesses | Verify the document's contents |
The direct-communication rule (critical California distinction): unlike many states, a California notary may NOT use an interpreter to communicate with a signer for a notarial act. The notary must be able to communicate directly with the signer. If you cannot communicate directly, you must decline — even if a translator is available. Your notary certificate must be in English so U.S. courts can read your record of the act.
Example: A Korean businessman presents a Korean document. You don't read Korean, but you both speak English, so you can communicate directly. He requests an acknowledgment; you verify his passport, complete an English acknowledgment certificate, and attach it.
Subscribing Witnesses
A subscribing witness procedure lets a principal who cannot personally appear be notarized through a witness who saw them sign. It is used for proof of execution of certain documents (not for jurats).
| Step | What Happens |
|---|---|
| 1 | The principal signs the document (notary not present) |
| 2 | The subscribing witness watches the principal sign |
| 3 | The witness appears before the notary |
| 4 | The witness takes an oath: "I saw [principal] sign" |
| 5 | The notary completes a proof of execution / subscribing-witness certificate |
Requirements for the subscribing witness: must have actually seen the principal sign; must be identified to the notary by the oath of one credible witness known to the notary (the subscribing-witness path uses a specific identification chain); and must sign the notary's journal.
Appropriate uses: the principal is hospitalized, bedridden, or has left the area. Not appropriate when: the principal could reasonably appear; the witness did not actually see the signing; or the situation is merely inconvenient. Note that California prohibits proof of execution by subscribing witness for certain documents — notably any document affecting real property when a power of attorney is involved, and for grant deeds, quitclaim deeds, deeds of trust, mortgages, and security agreements in many cases — because of fraud risk. When in doubt, require personal appearance.
Accommodating Signers with Disabilities
Notaries should provide reasonable accommodations, but communication with the signer must be possible.
| Situation | Accommodation |
|---|---|
| Cannot write | Signature by mark (two witnesses) |
| Wheelchair user / limited mobility | Comfortable positioning; mobile/home visit |
| Blind or visually impaired | Read the document aloud if requested (not required); guide to the signature line |
| Deaf / hard of hearing | Direct written communication with the signer |
Key limit: because California requires direct communication, a notary may not perform the act through an ASL interpreter for the oath/jurat. If the notary and a deaf signer can communicate directly in writing, the act may proceed; if not, it cannot.
Willingness and Awareness
Identity is necessary but not sufficient. The notary must also be satisfied that the signer is signing willingly and is aware of what they are signing. This matters most in special situations:
- Hospital / sedated signers: A signer who is heavily medicated, confused, or cannot answer simple questions lacks the awareness to sign. Identity alone does not cure this — decline.
- Coerced signers: If a relative hovers and answers for the signer, separate them and confirm the signer's free choice. Suspected elder financial abuse is grounds to refuse.
- Mark or accommodation cases: Providing an accommodation never lowers the awareness bar; the elderly signer making an "X" must still understand the power of attorney.
Quick Reference: Procedure by Situation
| Situation | Core California Rule |
|---|---|
| Cannot write | Sign by mark; two witnesses sign; one writes the signer's name |
| Foreign-language document | Notarize if direct communication; no translation; no interpreter |
| Principal cannot appear | Subscribing witness who saw the signing; restricted for many deeds |
| Deaf signer | Direct written communication required; no interpreter for the act |
| Blind signer | Read aloud only on request; full identity rules still apply |
| Sedated / confused signer | Decline — lacks awareness regardless of ID |
On the Exam
- Signature by mark: requires two witnesses (most common question).
- Foreign-language documents: notarizable if the notary can communicate directly; no translation required.
- No interpreter: California notaries must communicate directly — a classic trap.
- Subscribing witness: must have actually seen the principal sign; restricted for many real-property deeds.
- Disabilities: accommodate, but only if direct communication is possible.
A signer cannot write and signs with a mark (X). How many witnesses to the mark are required?
A signer hands a California notary a document written in Vietnamese. The notary reads no Vietnamese. Under what condition may the notary proceed?
Which statement about a subscribing witness is correct?