Before you stamp: a South Dakota notary's signer and certificate checklist

The Secretary of State's Notary Public Handbook describes the notary as an impartial witness, and says the notary's greatest responsibility is to be able to truthfully testify that the notary actually witnessed the act being certified. Everything below follows from that sentence. The Handbook lays out the in-person steps in order: require personal appearance, review the document, identify the signer, judge competency and willingness, then complete the certificate. This post walks through them with examples. The examples are illustrations written for this article, not Secretary of State material.

Step 1: the signer has to be in front of you

The Handbook calls this the first rule of notarizing: the person whose signature, oath or acknowledgment is being notarized must personally appear before the notary when an in-person act takes place. It states that notarizing without that appearance is a direct violation of South Dakota law and can be grounds for both revocation of the commission and civil or criminal consequences.

Worked example. A coworker drops off a signed form on your desk and says her husband signed it at home last night, could you just stamp it? The husband is not there, so there is nothing for you to witness. The answer is no, however routine the document looks. The remote online notarization rules are a separate framework with their own requirements, covered in the RON guide; they do not make an absent signer acceptable for an ordinary in-person act.

Step 2: glance at the document, but do not become its author

The Handbook says notaries are not responsible for verifying the contents of a document, yet should look at it enough to know what kind of document it is, which notarial act is called for, and who is supposed to sign. It also lists "attempt to draft legal documents for your clients" among the things not to do, and it says that because notaries are ministerial officials they do not have the authority to choose the type of notarization. If the document does not say and the signer cannot tell you what act is needed, the Handbook says not to proceed until that information is available.

Worked example. Someone hands you a one-page letter with no notary wording at all and asks you to "make it official." The Handbook's answer is that you may add a proper certificate to the document, but you may not pick the kind of act for them. Ask which act the receiving party requires: acknowledgment, signature witnessing or an oath. Whoever asked for the document can usually tell you. If nobody can, stop.

Step 3: how a signer counts as identified

The Handbook gives three routes.

• Personal knowledge. Someone you have known for a considerable period and would recognize anywhere. The Handbook's practical test: could you positively identify that person in court many years later?
• Documentary proof. Described as the most frequently used method. The Handbook says acceptable identification documents are government-issued cards with a picture of the person, and names a passport, driver's license or state ID card, tribal ID, military or student ID, or another government-issued picture ID. Its FAQ gives a similar list that also includes a U.S. immigration-issued card such as a resident alien card. You are not expected to be an expert on every ID, but the Handbook urges common sense and reasonable care when an ID looks tampered with or does not match what the person tells you.
• Credible witness. Described as the least understood option and typically unavailable without prior arrangement. The witness must be personally known to the notary, personally known to the signer, physically present at the act, unbiased, and must derive no benefit from the transaction.

Note what the Handbook does not say. It does not give a fixed list of the exact fields an ID must contain, and it does not say an expired ID is automatically unacceptable. It says to use reasonable care. If your situation turns on a detail like that, ask the Secretary of State's notary division rather than guessing.

Worked example. A customer's driver's license photo shows a clean-shaven man in his twenties; the person in front of you has a gray beard and looks sixty. That could be a decade-old photo, or it could be someone else's card. The Handbook's standard is reasonable care, so ask additional questions, look at a second photo ID, or decline. Compare also the name on the ID with the name on the document: if they differ materially, sort that out before you sign anything.

Worked example, credible witness. A signer has no ID. Her neighbor offers to vouch for her. The neighbor must be known to you and to the signer, be present, and have no stake in the document. If the neighbor is also a party to the transaction, or you have never met her, she does not meet the Handbook's description.

Step 4: competence and willingness

The Handbook says you must apply reasonable care to conclude the signer is lucid, understands what is happening and is not being forced. If there is a doubt, it says to refuse or suggest the notarization be done later if possible. More broadly, it says a notary should not act if the person cannot be satisfactorily identified, does not appear competent or have capacity, or does not appear to be signing voluntarily.

An ordinary check is a conversation, not an interrogation: ask the signer to tell you in their own words what they are signing, and notice whether someone else is answering for them.

Blank and already-signed documents

Two items on the Handbook's "don't" list matter every day: do not notarize a blank or incomplete instrument, and do not notarize a document that has already been signed. Its four-point pre-finish checklist asks whether the main body of the document has any blank spaces. To respect privacy it says you do not need to read the document in detail, only confirm necessary information is filled in.

For the already-signed case the Handbook is specific. When witnessing a signature, South Dakota law requires you to physically watch the person sign. If the document was signed beforehand, the person must sign it a second time in your presence.

Worked example. A signer arrives with an affidavit already signed at the bottom. You do not refuse; you ask them to sign again, beside or below the first signature, while you watch, and then complete your certificate. If the signature line has no room, that is a question for the party receiving the document, not something to improvise around.

Step 5: the certificate, and its five parts

The Handbook stresses that the words of a certificate are not formalities: they are the notary testifying to what happened, where, when and who was involved. Its example: "signed before" means the notary is saying it was signed in the notary's presence, and "subscribed and sworn before me" means the signing happened in front of the notary and the notary also administered an oath. Never complete wording that describes something you did not do.

It lists five parts of an in-person certificate:

1. Venue — where the notarization actually takes place, which is not necessarily the county where you live or work. If the venue is pre-filled and wrong, cross it out and write the correct one.
2. Body — the signer's name, the date, and the details of the act, for example that the person appeared and acknowledged executing the document.
3. Notary's signature — wet signature, exactly as it appears on your commission and seal.
4. Seal — clear and legible, normally beside your signature.
5. Commission expiration date — the full day, month and year from your commission certificate, written, printed or stamped on the document.

If a document has no certificate, or a pre-printed one you cannot use, the Handbook says you must substitute a proper one by writing, stamping, typing or attaching it as close to the signer's signature as possible. For an attached certificate it suggests noting "See notarial certificate attached" on the document and naming the document type on the certificate, and it says a certificate cannot be removed from one document and attached to another.

Errors can be corrected before you hand the document back; corrections should be initialed and dated by the notary. Handwritten changes cannot be made to the impression of the seal, and an unclear impression has to be re-made.

The 60-second proofread

The Handbook says an incomplete certificate is one of the most common causes of rejected documents, and gives a short list to review before the signer leaves:

• Body of the document has no blank spaces.
• Certificate has no blank spaces.
• Signer's name and your name are spelled correctly and in the right places; your name matches your commission and seal exactly (no nicknames or abbreviations that are not on the commission).
• Venue and date are correct.
• Signature, seal and expiration are legible, and the seal does not cover any text.

What this post cannot tell you

Two questions readers often ask are not answered in the Handbook text this post relies on. First, whether a South Dakota notary must keep a journal: the Handbook's do-and-don't list says to learn "what records, if any" you may wish to keep, and states no requirement in the sections reviewed. Second, whether a notary may act on a document in which the notary or a relative has a personal interest: the Handbook describes the notary as impartial and says to learn the circumstances that may disqualify you, but the part reviewed does not spell those circumstances out. For either question, ask the Secretary of State's notary division, which the Handbook says can answer practical and administrative questions but cannot give legal advice. Your oath, according to the Handbook, commits you to perform duties "faithfully and impartially," so when in doubt about a conflict, the cautious course is to decline and refer the person elsewhere.

The statutes are more specific than the Handbook on conflicts: SDCL 18-1-7 and 18-1-12.2 are explained in notarizing for family, an employer or yourself, and the statutory certificate wording for corporate officers, agents and fiduciaries is in which acknowledgment form to use.

For fees, see notary fees; for seal and name changes during a commission, see renewals and changes.