April 1, 2009

Signature by Proxy

Article from American Association of Notaries

Please Note: Read your state notary laws to make sure this powerful authorization is actually given to notaries public in your state. Some states do not authorize signature by proxy.

In states that do allow signature by proxy, the first stipulation is that a disabled principal who is unable to make a signature or mark due to a physical disability must direct the notary public or another individual to sign on his or her behalf in the presence of at least one impartial witness. The impartial witness must not have any legal or equitable interest in any real or personal property that is the subject of, or is affected by, the document being signed and notarized. The impartial witness must not be named in the transaction or directly receive any financial or beneficial interest in any commission, fee, advantage, right, title, cash, property, or other consideration in connection with the transaction. The competent disabled principal may direct a notary public or a third party by verbal means, in written form, or other mechanical devise to sign his or her document. The signature by proxy must be applied on the document in the presence of the disabled principal and the witness.

The notary should write the following or a substantially similar sentence below the signature:

“Signature affixed by [notary’s name], Notary Public, in the presence of [name witness],” a disinterested witness, under Section _______ [cite the statute].”

Example “Signature affixed by Dora A. Valles, Notary Public, in the presence of Mary Smith, a disinterested witness, under Section 406.0165 of the Texas Government Code."

The statutes in the states that allow signature by proxy generally define “disability” to include only individuals with a physical impairment that impedes the ability to sign or make a mark on a document. The state statute may also dictate that notaries require identification of the witness in the same manner as from an acknowledging person. The notary should record the act in his or her notary journal with an accurate and detailed description in case the notary needs to show evidence that the disabled principal consented to the execution of the document. The notarial record must also reflect the witness’s information and signature. Maintaining a detailed, chronological notary journal is the best safety measure against civil and criminal liability for every notary public.
In states that do not permit notaries and/or third parties to apply a signature by proxy for a disabled principal, a notary public may only notarize for a disabled principal if one of the following situations occur:

1. The disabled principal signs the document.

2. The disabled principal signs the document by marking an “X” or other symbol in the presence of a disinterested witness.

3. An attorney in fact signs the document on behalf of the disabled principal by using a power of attorney.

4. A court-appointed conservator or guardian signs the document on behalf of the disabled principal.

If none of the above situations apply, the notary public must decline the notarization.
Lastly, any mistakes or errors found in the content of the body can only be corrected by the document signer. The corrections or alterations to the content of a document will be basically in the same manner that a notary public corrects a notarial certificate; the signer makes a line in ink through the incorrect information and inserts the correct information, initials it, and dates it. A notary public is not permitted to make any alterations or corrections to the content of any document presented for a notarization unless the notary is a licensed attorney.
The information provided herein is not intended to be an authoritative statement of law. Notary laws differ from jurisdiction to jurisdiction and may be interpreted or applied differently depending on your state’s statutes or situations. By providing this information, we are not acting as your attorney. We are providing this information based on long-established and recognized notarial standards and practices. If you have legal questions regarding acts or conduct as a notary public, please consult with an attorney or refer to your state’s statutes or other appropriate legal resources.

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