3.1 Personal Appearance, Understanding, Free Will & Language
Key Takeaways
A Missouri notary may notarize only if the principal is in the notary's presence at the time of notarization; remote online notarization by a registered notary is the only exception (Section 486.645.1(1)).
The principal must appear to understand the nature of the transaction and appear to be acting of his or her own free will (Section 486.645.1(3)-(4)).
The principal must communicate directly with the notary in a language both understand and sign in letters or characters the notary understands (Section 486.645.1(5)-(6)).
A good-faith determination about a principal's understanding or free will is not negligence for liability purposes (Section 486.805.5).
Knowingly failing to require the principal's presence is a misdemeanor punishable by a fine up to $500, up to six months in jail, or both (Section 578.700.2).
Identification answers who is signing. Section 486.645.1 RSMo goes further and asks whether this person is present, understands, is acting freely, and can communicate with the notary. A notary "shall perform a notarial act only if" every condition is met.
The Six Conditions of Section 486.645.1
| # | The principal... | Practical test |
|---|---|---|
| 1 | Is in the presence of the notary at the time of notarization | Same room, same time; no phone, video, or "I'll drop it off later" |
| 2 | Is personally known to the notary or identified through satisfactory evidence | See Sections 3.2 and 3.3 |
| 3 | Appears to understand the nature of the transaction | Can the person say what the document is and what it does? |
| 4 | Appears to be acting of his or her own free will | No pressure, threats, or another person directing the signing |
| 5 | Signs using letters or characters of a language the notary understands | The notary can read the signature's script; the mark procedure covers those who cannot sign |
| 6 | Communicates directly with the notary in a language both understand | No go-between; the notary and the principal speak to each other |
A principal is a person whose signature is notarized, or a person (other than a credible witness) taking an oath or affirmation (Section 486.600(18)).
Presence Means Physical Presence
For paper notarizations and in-person electronic notarizations, the principal must be physically present. Each definition in Section 486.600 begins with an individual who "appears in person before the notary." The Secretary's FAQ answers two common questions with a flat "No": a notary may not take an acknowledgment over the phone, and may not notarize a signature watched over a webcam unless the notary is performing a remote online notarization under Sections 486.1100 to 486.1205.
Remote online notarization (Chapter 6) is the single statutory exception. Even then, "presence" means a live audio-video session through software the Secretary has approved, performed by a notary who has registered for remote online notarization and who is physically in Missouri (Sections 486.1100(1), 486.1150, 486.1155).
Caution
Knowingly "failing to require the presence of a principal at the time of a notarial act" and knowingly "failing to identify a principal through personal knowledge or satisfactory evidence" are crimes. Under Section 578.700.2, each is a misdemeanor punishable by a fine of up to $500, imprisonment for up to six months, or both.
Assessing Understanding and Free Will
The statute uses the word appears. A notary is not a doctor or judge and does not diagnose capacity. The notary forms a reasonable impression from the conversation:
- Ask open questions: "What is this document?" "What will it do?" A signer who can explain the document in his or her own words usually appears to understand it.
- Speak with the signer directly, not through a relative, agent, or caseworker.
- Watch for pressure: someone answering for the signer, hurrying the signer, or the signer expressing fear or reluctance.
- In hospitals and care facilities, check that the signer is alert and responsive at the time of signing.
If the signer does not appear to understand, or does not appear to act freely, the notary must decline. Section 486.650.2(2) does not require a notary to perform an act that Section 486.645 prohibits, and Section 486.705.3 lets the notary record in the journal why the act was not performed.
The law also protects notaries who make these calls honestly. Section 486.805.5 states that "negligence" for liability purposes does not include a good-faith determination made under the understanding and free-will conditions (Section 486.645.1(3) and (4)).
Language Requirements
Two conditions deal with language:
- Direct communication. The principal must communicate directly with the notary "in a language both understand." A relative or friend acting as interpreter does not satisfy this; the notary and principal must share a language. A Spanish-speaking notary may notarize for a Spanish-speaking principal.
- Readable signature. The principal must sign in letters or characters of a language the notary understands (Section 486.645.1(5)). If the principal cannot write a signature the notary can read, the mark procedure of Section 486.645.2 is available (Section 2.3).
The certificate itself must be in a language the notary reads, writes, and understands (Section 486.740.3). The document may be in another language, but the handbook cautions that the notary then depends on the signer to explain its contents.
Refusing Correctly
A refusal must be based on the law, not on who the person is. Section 486.650.1 forbids refusing a notarial act because of the characteristics protected from employment discrimination in Section 213.055 RSMo: race, color, religion, national origin, sex, ancestry, age, or disability. A wheelchair user, an elderly signer, or a signer with a foreign accent is entitled to service on the same terms as anyone else. A refusal is proper when a Section 486.645 condition fails, such as no presence, no satisfactory identification, apparent confusion or coercion, or no common language.
Exam Scenarios
- Speakerphone. A daughter brings her father's power of attorney, already signed, and puts him on speakerphone to "confirm." The father is not present. The notary must refuse.
- The son answers everything. At a nursing home, a son answers every question while the mother stares silently. She does not appear to understand or communicate directly. The notary declines and may note the reason in the journal.
- Shared language. A notary who speaks Vietnamese may notarize for a Vietnamese-speaking principal, but the certificate must be completed in a language the notary reads and writes.
A signer calls a notary on speakerphone and asks her to acknowledge a deed that his sister brought to the office. The notary is not registered for remote online notarization. What must she do?
Proceed if the signer confirms the signature twice on the call
Proceed and note in the journal that the signer appeared by phone
Refuse, because the principal must be in her presence at the time of notarization
Proceed if the sister presents the signer's driver's license
At a care facility, an adult son answers every question while his mother, the signer, looks confused and says nothing. What should the notary do?
Proceed if the son produces a valid durable power of attorney signed by his mother last year
Proceed if the mother's photo ID is current and the picture on it clearly matches her face
Proceed and charge an extra fee for the additional time
Decline, because the principal must appear to understand and must communicate directly
A signer speaks only Polish. The notary speaks only English. The signer's friend offers to interpret. What does Section 486.645.1 RSMo require?
The notary may not proceed, because the principal must communicate directly in a shared language
The notary may proceed if the document is written in English
The notary may proceed if the friend takes an oath as interpreter
The notary may proceed if the friend signs the journal as well
Sections you finish are checked off in the contents.