Notaries are primarily concerned with the authentication and certification of signatures, authority and capacity relating to documents for use overseas. For centuries, notarial acts have been recognised and accepted at home and abroad.
Often a document will have been prepared by a foreign lawyer and sent to someone in Guernsey for execution before a notary. Examples of such documents include powers of attorney, sworn statements, contracts, property transaction papers and various certificates.
Notaries may also be involved in authenticating personal documents and information for immigration or emigration purposes to enable people to work, live or marry abroad. For example, you may need a notary to certify a set of educational certificates or declarations of freedom to marry. The role the notary plays is often much more than just taking a copy of some authentic looking paperwork, they often have to make further checks.
The simple certification of copies and facts carries a greater risk of error than is obvious at first sight. For example, I was recently asked to authenticate a certificate of naturalisation. This document needed to be apostilled for use abroad. I had to make certain checks to ensure that the individual concerned had been naturalised and that the certificate number and also the number of her passport was correct before I could create a certificate to confirm the same. A similar process may be required to check that someone actually holds the educational certificates they produce. It is very easy to create forgeries or invent educational institutions.
At the end of the day, the certificate created by the notary has to embody exactly what they have seen before them. They can still create a certificate but the content may vary between being able to certify that a person attended a certain institution for a certain period and was awarded a certain qualification to certifying that the documents attached to the notarial certificate were produced to the notary by the individual concerned and that the notary has not made any further checks concerning the authenticity of such certificates. It ultimately depends upon what is required and what meaningful certificate can be given by the notary given the time and the information before him/her.
For use in Guernsey
There are actually few circumstances where Guernsey law documents legally require notarisation for use in the Bailiwick. However, affidavits and other sworn statements for court under the Powers of Attorney and Affidavits (Bailiwick of Guernsey) Law, 1995 must be sworn before a notary, a Jurat or an advocate of 5 years standing so are often sworn before a local notary public and some businesses or regulators often require CDD documents to be authenticated or may require certain certificates to be prepared by a notary in order to give this level of security.
For Use Abroad
It is important to establish if a document needs be notarised as failure to notarise may result in the document being invalid or unenforceable (or both) in the ultimate jurisdiction.
Where a notarised document is to be used abroad it will usually be necessary for the notary's signature and seal to be certified as genuine. This process is called legalisation. It may also be known as an apostille. This extra service has a fee payable to HM Greffe (at the time of writing this is £40 for 24-hour service; £81 for a fast track 15 minutes service).
Documents subject to Crown Copyright
There are some documents that cannot be notarised. For example, certificates of birth, death and marriage should not be notarised. The making of such copies save for the personal record of the maker is a breach of Crown copyright and is forbidden. Notaries should insist on obtaining official copies. On these the signature of the registrar may be legalised directly and the notary may, if required, add his or her own attached certificate if the receiving country requires a notarial stamp in addition to this (which they sometimes do). You may however come across official documents that in theory are subject to Crown copyright that cannot be legalised directly. Going back to the certificate of naturalisation, this had been signed by a previous Bailiff of Guernsey, however as his signature was not in the book of official signatures used for apostilles, this document could not be legalised without the signature and certification of a local notary.
Executing a document before a notary
The role of the notary is to provide authentication and a secure record for almost any sort of transaction, document or even event. This is not simply witnessing someone sign a document, there is more to it.
Where a document is executed or sworn before a notary, the notary must verify the following for each client:
- their identity
- their legal capacity
- their understanding of the document
- their authority if signing on behalf of another party such as a limited company or under a power of attorney.
There are significant and often onerous background and verification checks that need to take place. Merely watching someone sign a document, putting a seal on it and ringing the cashier register is not satisfactory!
Where a director executes a document
For example, where a client company is entering into an agreement and the signature of the director binding the company needs to be notarised. The notary will need the following before he/she can do this:
For Verifying Identity (you need to do this for the entity itself and the natural person actually doing it):
- sight of the passport of the director/officer who will be executing the document for and on behalf of the company
- certified copies of the M&A of the company
- certified copy of the certificate of incorporation
The notary will also need to undertake a company and litigation search to check that the company exists and is not subject to a winding up or liquidation order.
For Verifying Legal capacity:
- certified copies of the minutes of the board authorising the company to enter into the document and also authoring the person or people executing the document to do so on the company's behalf (the best case – personal attendance at the meeting as an observer but this is rarely practicable)
- access to the directors' register
- list of the authorised signatures
For Understanding of the document:
- a copy of the agreement for review and a quick discussion with the people who will execute the same
What to do before your meeting
To conclude, it is always best to contact your notary prior to arranging an appointment to explain what it is you need doing and for what country. It may transpire that you do not need their services at all or it may be that your notary needs more information before your documents can be notarised.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.