What does a notary do?

Most people who come to me for notarial services don’t know what a notary does, nor what notarisation means. Then if I mention words like ‘apostille’ or ‘legalisation’ it becomes even more confusing.

The situation is not helped by solicitors who tell clients that they can certify their documents for use abroad. In fact, most solicitors seem to have only a scant understanding of what a notary’s role involves, so it is hardly surprising that people outside the legal world often do not understand all this.

 
What does a notary do?

 

Notaries date back to Roman times

The notary branch of the legal profession is the oldest one, having evolved during Roman times. A significant proportion of a modern notary’s training relates to the basic principles of Roman law, which may seem archaic, but it all goes back to that.

Roman law was a codified system, and that has filtered down over the years to the civil law systems employed by many countries around the world, and particularly most European countries. The United Kingdom is different, in that it uses a common law system.

The best way to describe the difference between the two systems is to say that civil law is based upon a code of laws set out by the state and adhered to in every application of the law, whereas a common law system makes law by a combination of statutes created by Parliament and previous court decisions in many thousands of cases.

That is known as precedent law, and it requires lawyers to understand the relevance of many earlier decisions in order to know how the court may respond in their own case.

This does not directly impact on how a notary does his or her work, but the ongoing existence of civil law systems means that the notary is still considered an important constituent of those legal systems. In particular, in countries such as France, Spain and Italy the notary has a central role in property transactions.

That is not the case in the UK, where notaries’ duties are restricted to validating or verifying acts, events, facts or documents for the benefit of an overseas person, company or government body.

 

Most notaries are experienced solicitors

Most notaries are also experienced solicitors, but quite a large proportion have given up their solicitor’s practice in order to concentrate on notary work. They will have considerable experience and expertise in English law, which is important because one of the tasks that a notary undertakes is to confirm that the execution of a document by a client in a particular way is in accordance with English law requirements.

For instance, in England and Wales in order for a power of attorney to be valid, it must be signed by the person giving the power in front of a witness, who must also sign his or her name on the document. Even though that document needs to buseable and enforceable in the country to which it is to be sent, the person receiving it needs to know that it would be enforceable in the country in which it was executed.

 

Common types of notary work

When someone comes to see a notary they usually require him to witness their signature to a document, and to certify that he has identified them as being the person named in the document, that they have legal capacity to sign it and that they have the will, or intention, to sign it and make it effective.

Other typical notary work includes verifying that educational or professional certificates are genuine, and so can be relied upon by an foreign employer, confirming the status of a UK company which wishes to undertake business abroad, verifying the correct execution by the correct people of property sale or purchase documents, and witnessing the signature of a parent on a form giving consent to a child to travel abroad without them.

There are so many different possibilities when a new client comes through the notary’s door, and that is one of the things that makes the job interesting.

In simple terms, the notary acts as the eyes and ears of the foreign company, government body or person who requires the client to produce a notarised document. As a result of the qualifications of the notary, and recognition by the UK government, the person receiving the document is able to trust what is stated by the notary in the certificate he produces.

 

Documents for overseas recipients

Once a document has been notarised, or the notary has produced a notarial certificate describing and verifying some events or facts, it may be ready to be dispatched to its intended recipient overseas. However, in some circumstances the document then has to be legalised.

There is a simple method of doing this which some countries accept, and there is a more convoluted process which is required by some destinations. If the destination country is a signatory to the Hague Convention of 1961, it will accept legalisation by way of an apostille.

This is a particular type of sealed form which is attached to the document by the Foreign Commonwealth and Development Office of the UK government (the FCDO).

Every practising notary has to submit a specimen signature and their unique seal of office to the FCDO, together with other information about themselves. In that way, when a notary prepares a certificate and sends it to the FCDO, they know that he or she is a genuine notary, who can be relied upon to provide notary services in a legal and honest way.

The FCDO checks the signature and seal on the certificate against its own records, and then applies the apostille.  In other words the FCDO checks up on the notary in question and confirms their genuineness by the apostille. This provides safety and certainty to the receiving party.

Some countries are not signatories to the Convention. This includes most middle eastern  and some far eastern countries, China and various other places around the world.

For documents which have been notarised for use in one of those countries full legalisation is required. The document goes to the FCDO for a certificate, as it would if it was being apostilled, and then it goes to the UK embassy of the country in question, where the FCDO certificate is checked and then a legalisation stamp is added by the embassy. Only then will it be good enough for the intended recipient to rely upon.

It is possible for a client to obtain the apostille or legalisation themselves, but this usually involves at least a trip to the FCDO office in Milton Keynes, and possibly also a visit to the relevant embassy. It is much easier, and usually cheaper and faster to ask your notary to deal with legalisation for you.

Most will charge a modest additional fee for doing this, and then the other costs involved are consular agents charge (currently under £20), the FCDO fee of £30 and the cost of tracked mail or courier transmission to either the client or the overseas recipient. Those additional charges over and above the FCDO fee (which is payable in any event) almost always cost less than the travel to Milton Keynes, not to mention the lost time spent in getting there.

 

In Summary

So that is notarising and legalisation: the notary checks up on the person using him so he can verify certain things to the overseas party involved, and the FCDO and embassy check up on the notary.

If you need any more information about this, please do not hesitate to contact me by email or phone, and I will be pleased to help you.