The Refused Affirmation and the Unregistered Journal
A notary is asked to notarize an affidavit for a person whose religion forbids swearing oaths. The notary's employer's policy says 'all affidavits require an oath; affirmations are not accepted.' The affiant offers to affirm instead. The notary's journal has not been updated in two months, and the notary has been keeping entries on a personal phone note. The notary's commission lapsed 40 days ago, and she has continued notarizing because 'the renewal is in the mail.' The affiant's ID is a foreign passport with no English translation of the name.
1. Must the notary administer an oath, or may she accept an affirmation?
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An affirmation is legally equivalent to an oath for notarial purposes and exists precisely to accommodate persons who object to swearing. The employer's policy cannot override the affiant's right to affirm; refusing would unlawfully burden the affiant's religious exercise and could expose the notary and employer to liability. The notary should administer an affirmation-asking whether the affiant affirms the truth of the contents under penalty of perjury-and the certificate should state that an affirmation was administered. The notary should also note the choice in the journal.
2. What are the consequences of the lapsed commission and the deficient journal?
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A notary whose commission has lapsed has no authority to perform notarial acts; acts performed after expiration are generally void or invalid and may expose the notary to civil liability and criminal penalties for unauthorized practice. 'Renewal in the mail' is not a defense. The notary must stop notarizing immediately, and the affected documents may need re-execution before a properly commissioned notary. The journal deficiency compounds the problem: a personal phone note is not a compliant journal, may be lost or altered, and fails to provide the required record. The notary should reconstruct entries where possible, preserve the phone note, and disclose the lapse to affected parties and the commissioning authority as required.
3. How should the notary handle the foreign passport with no English translation?
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The notary must be able to identify the signer with reasonable certainty. A foreign passport can be acceptable satisfactory evidence if it is current, bears a photo, and the notary can match the signer to it. The absence of an English translation of the name is a concern but not automatically disqualifying; the notary should compare the photo and the name as written, ask the signer to spell and explain the name, and record the document type, number, and issuing country. If the notary cannot reasonably confirm identity, she must decline. She should not rely on a coworker's assurance. Given the lapsed commission, the notary must decline anyway and refer the affiant to a properly commissioned notary.