The Expired License and the Grandson as Credible Witness
Evelyn, 82, needs an advance health care directive notarized. She appears at the notary's office with her grandson, Kyle. Evelyn has no current driver's license; her license expired 14 months ago. She also has a Medicare card with no photo and an expired passport. The notary, Tasha, does not know Evelyn or Kyle. Kyle says he has known Evelyn his whole life and can vouch for her. Tasha compares the expired license photo to Evelyn, finds it matches, and completes the acknowledgment. Kyle signs nothing. Tasha notes in her journal that Evelyn appeared in person. The document is later challenged by Evelyn's son, who claims Evelyn was not properly identified and that Kyle was not a credible witness. Tasha says Evelyn appeared in person, so the identification requirement was satisfied.
1. Did Evelyn's personal appearance satisfy Minnesota's requirements? What else is required?
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Personal appearance is necessary but not enough. Minnesota requires the signer to appear before the notary and to be identified by satisfactory evidence. Tasha saw Evelyn, so appearance is satisfied. Identity is not. An expired driver's license is generally not satisfactory evidence because it is no longer current; a Medicare card without a photo does not identify a person; and the expired passport has the same problem. Tasha did not personally know Evelyn. Matching an old photo to the person in front of her helps, but it does not turn an expired document into current identification. The notary should have used a current government-issued photo ID, or a credible witness who is personally known to the notary and who knows the signer. Because neither route was used, the acknowledgment lacks proper identification.
2. Could Kyle serve as a credible witness? What must be true?
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Probably not on these facts. A credible witness is not just anyone who says they know the signer. The witness must be personally known to the notary and must know the signer, and the witness must provide satisfactory evidence of their own identity. Kyle was not known to Tasha before this visit, so he does not meet the 'personally known to the notary' requirement. His statement that he has known Evelyn his whole life may be true, but it does not make him a credible witness for this notary. Some states allow two credible witnesses or other combinations; the notary should follow Minnesota's exact rule. Tasha should not have accepted Kyle's vouching without independently satisfying the witness requirement. She should have declined or found a current ID or a witness she personally knew.
3. What should Tasha have done, and what are the consequences?
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Tasha should have stopped before completing the certificate. She could ask Evelyn to produce a current government-issued photo ID; if none was available, she could use a credible witness whom Tasha personally knew and who knew Evelyn. If neither was possible, she should have declined and suggested another notary. She should not have written a certificate implying satisfactory identification when she had doubts. The document may now be challenged, and the son's allegation is supported by the facts. The notary may face civil liability if Evelyn relied on the notarization and suffered harm, and she may face discipline. The parties may be able to cure the problem with a new notarial act if Evelyn still has capacity and appears with proper ID, but that new act would not validate the earlier certificate.