The Expired Commission and the Hospital Directive
Dana has been a Mississippi notary public for nearly four years. Her commission expires on June 30. On May 2 she mailed her renewal application to the Secretary of State with the required bond and fee, but the office has not yet issued the new commission. On July 2, a hospital discharge planner asks Dana to notarize a patient's advance health care directive. Dana still has her old seal, which shows the June 30 expiration date. The patient is alert, signs in Dana's presence, and presents a Mississippi driver's license. Dana wants to help because the patient is being discharged the next morning. She calls the Secretary of State's office and reaches a recording saying renewal applications are taking 8 to 10 weeks. Dana considers using her old seal and writing the new expiration date by hand once she receives it.
1. May Dana perform the notarial act on July 2 using her old seal? Explain the effect of the pending renewal.
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No. A Mississippi notary's authority comes from a current commission, and the four-year term ends on the stated expiration date unless the notary has been recommissioned. Filing a renewal before expiration does not extend the old commission, and a new commission is not retroactive. Using the old seal on July 2 would falsely imply current authority, and the certificate would be defective. The patient's valid ID and willingness do not cure the lapse. Dana should verify her commission status with the Secretary of State, decline the act if no new commission has been issued, and help the hospital locate another commissioned notary. She must not write a new expiration date on the old seal or otherwise alter it.
2. What should Dana do with the old seal, and what records should she keep when the new commission arrives?
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She should stop using the old seal immediately. When the new commission is issued, she should obtain a new seal showing the correct name and new expiration date and retire or destroy the old seal so it cannot be used accidentally. She should keep a copy of the new commission, the bond and application records, and a log of notarial acts performed under the new commission. If she has already performed any act after June 30, she should not conceal it; she should consult her errors-and-omissions carrier and the Secretary of State about corrective steps, and the document may need to be re-executed before a properly commissioned notary.
3. If Dana notarizes the directive on July 2 and the hospital later submits it, what risks arise?
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The notarial certificate would be invalid because Dana lacked authority on the act date. A recorder or recipient could reject the directive, and the patient's intent could be frustrated. Dana could face administrative action by the Secretary of State and civil liability to persons relying on the defective act; her bond or errors-and-omissions coverage may be implicated. The practical fix is not to alter the certificate but to have the patient re-execute and acknowledge before a notary with a current commission, if the patient still can do so. Backdating or using a seal with a false date would turn a lapse into a misrepresentation.