Ad Astra Per Notarius
Kansas has a new notary law.[2] The COVID-19 pandemic, a once-in-a-century force majeure, was a catalyst for legal change. To protect people from exposure to the COVID-19 respiratory virus, Kansas and other states temporarily waived the notary’s traditional physical presence requirement.[3]
The new notary law mostly replaced the old notary law with fresh or expanded definitions and rules, and applied starting January 1, 2022, including to notaries commissioned before 2022.[4]
We explore some highlights of the new law:
A notary journal is now required.[5] A notary must keep and maintain a journal for 10 years.[6] Only one physical (paper) journal can be kept at a time, but more electronic journals are allowed.[7] A journal entry must be made contemporaneously with the notarization and include 6 items: (1) the date and time of the notarial act; (2) a description of the record, if any, and type of notarial act; (3) the full name and address of each individual for whom the notarial act is performed; (4) if identity of the individual is based on personal knowledge, a statement to that effect; (5) if identity of the individual is based on satisfactory evidence, a brief description of the identification method and credential presented, including the date of issuance and expiration of any identification credential; and (6) any fee charged by the notary.[8]
The new notary law updates and expands the identification rules.[9] As before, the notary needs “personal knowledge” of the signer’s identity. The new law adds a clarifying 3 year window so the notary can have “satisfactory evidence of the [signer’s] identity” via a (1) “current” (or less than 3 years expired) “passport, driver’s license or government-issued nondriver identification card” or (2) another “current” (or less than 3 years expired) government identification with the signer’s “signature and a photograph” or (3) a “credible witness” giving a “verification on oath or affirmation” of the identity based on the proffered identification.[10] The notary has discretion to “require” “additional information or identification credentials necessary to assure” the signer’s “identity.”[11] The new law hones the satisfactory evidence test to current (or less than 3 years expired) identification.
The new law expands and clarifies the refusal to notarize rules, formally laying out specific criteria for a refusal to notarize.[12] A notary has several grounds to refuse to notarize: (1) if insufficient identity verification is produced, (2) if the individual does not appear to be “competent or ha[ve] the capacity to execute the record,” or (3) if the individual appears to be under coercion, duress, or undue influence so the “signature is [not] knowingly and voluntarily made.”[13]
The first ground is a factual matter for the notary’s discretion. The second and third grounds may involve legal or medical questions – which the notary may or may not be qualified to evaluate and answer – and could well spark future litigation. For example, does competency or capacity mean testamentary capacity (as required for executing a will or codicil), or a higher or lower threshold? Should a document be notarized for a hospital patient shortly before she is given intravenous anesthesia for an operation? If a patient is already on morphine, a narcotic, a sedative, or other medication, does the patient have diminished capacity or sufficient capacity to sign a document before a notary?
A person can still sign as proxy for the signer, much like acting as a durable power of attorney, by including the words: “Signature affixed by (name other than the individual) at the direction of (name of individual).”[14]
The new law keeps familiar notarial certificate rules, but has the Secretary of State’s office promulgate certificates, rather than enshrining those in the statute.[15] Will the certificates be updated from the statutory forms? Time will tell. For decades, a notarial act has been accompanied by a notarial certificate (usually a statutory short form), executed contemporaneously with the notarial act, signed, and dated by the notary listing Kansas, and including the notary’s title and commission expiration.[16] A Kansas notary should remember to include the notary commission expiration date, as omitting this information is a crime.[17]
The new law has similar notary stamp (or “notarial seal”) rules to the old law, but adds authority for electronic or remote notarization and for verification of electronic signatures and documents, under the auspices of a “physical” or “electronic” “stamping device.”[18] A notary uses her unique stamp or seal to notarize a document.[19]
The new law raises the surety bond amount to $12,000 (up from the old law’s $7,500), but otherwise keeps the same rules.[20] A bond may be cancelled if the facts merit doing so.[21] An injured party may sue to recover the bond for “any...failure of a notary public to faithfully perform any notarial act.”[22]
The new Kansas notary law is similar to the prior law on beneficial interests.[23] Kansas notaries cannot “perform a notarial act” if the notary (or spouse) (1) “is a party” or (2) “has a direct financial or beneficial interest.”[24] A “direct financial or beneficial interest” exists if the notary (or spouse) (1) “is named in a record, individually, as a principal to the transaction” or for real estate (2) “is named in a record, individually, as a grantor, grantee, mortgagor, mortgagee, trustor, trustee, beneficiary, vendor, vendee, lessor or lessee to the transaction.”[25] But the notary “has no direct financial or beneficial interest in a transaction when the notarial officer acts in the capacity of an agent, employee, insurer, attorney, escrow agent or lender for a person having a direct financial or beneficial interest in the transaction.”[26]
The new law affirms the personal appearance rule, but expands the definition to allow online or remote notarization in light of the COVID-19 pandemic experience. The new law permanently enshrines the gist of the temporary COVID-19 appearance rules.[27] A remote online notarization is where the signer appears in Kansas by audio-video technology before the notary, while an e-notary is notarizing an electronic document (e.g. a PDF or DocuSign).[28] The pandemic led Governor Laura Kelly to temporarily suspend the personal appearance requirement and issue executive orders allowing remote notarizations.[29] Electronic signatures are incorporated into the new law.[30]
Many traditional precepts of Kansas notary law are alive and well after the statutory update. A notary can now perform 8 acts (an increase from 7 acts under the old law): (1) take an acknowledgment; (2) administer an oath or affirmation; (3) take a verification upon oath or affirmation; (4) witness or attest a signature; (5) certify or attest a copy; (6) note a protest of a negotiable instrument; (7) perform a notarial act authorized by the law of the state, or (8) certify that a tangible copy of an electronic record is an accurate copy of the electronic record.[31] An unsworn declaration can still be made without a notary present, but not for (1) an oath of office, (2) an oath before an official, or (3) purposes of a testator or witness to a will or codicil.[32] Requirements (or conditions precedent) apply for various notarial acts.[33] A notary must identify the individual.[34] Qualifications to perform a notarial act are given.[35] A notarial act and acknowledgment are defined.[36] A notarial act performed in (1) Missouri or another state, (2) a federally recognized Indian tribe, (3) a federal notary act, or in (4) a foreign country “has the same effect” as if done in Kansas.[37]
An adult can be appointed as a notary public for 4 years if he or she is a Kansas resident (or a border state resident), is employed in Kansas, or regularly carries on a business or profession in Kansas.[38] Notary commission and qualification rules are laid out.[39] A prospective notary must pass an exam before the commission is issued.[40] A notary appointment can be denied, non-renewed, revoked, suspended, or conditioned.[41] Notaries cannot do some things.[42] A notary’s acts are presumed valid.[43] The Secretary of State promulgates rules and regulations.[44] There is a 3 year statute of limitations for suing a notary public.[45] A notary public can resign, or have her commission declined or revoked.[46] A notary public is not automatically reappointed – a notary must reapply after her term expires.[47] Consistent with due process and an opportunity to be heard, a notary public is given 30 days’ notice of a claim being made against the notary’s surety bond.[48] A notary “shall not engage in false or deceptive advertising,” “use the [Spanish] term[s] ‘notario’ or ‘notario publico’” or other foreign language terms unless they are an attorney, or “advertise or represent” or “assist … in drafting legal records, giv[ing] legal advice” or “practic[ing] law” unless the notary is an attorney.[49]
We have explored some highlights of Kansas’ new notary law. While Kansas notary law has been refreshed and updated (and most of the old law repealed), the notary’s role is still vital to serving Kansas citizens.
Steve is a Kansas and Missouri attorney and notary public. B.A. (Phi Beta Kappa), Kansas State University; J.D., University of Kansas. Partly adapted from Hunter & Tafreshi, “Kansas Notaries: Updates & Best Practices,” 2022 Johnson County Bar presentation. Dedicated to my beloved grandmother, Ruth Moreing, the first notary in the family, to those lost to COVID-19, and to the healthcare professionals who served selflessly on the front lines. [Return to Text]
2. K.S.A. § 53-5a01 et seq, effective January 1, 2022, based on the revised uniform law on notarial acts, from the Uniform Law Commission. Notary law is mostly statutory, supplemented by the state’s notary handbook, and limited case law. Kansas’s old notary law, K.S.A. §53-501 et seq (now mostly repealed), was the uniform law on notarial acts, adopted in 1984, with parts tracing to 1868. The notary public role dates to ancient Rome. Garner, Black’s Law Dictionary (11th ed., 2019), 1275. The term notarius comes from the Latin nota, for a “character or mark.” Id. at 1274. In Shakespeare’s Merchant of Venice pound of flesh scene, Shylock loans Bassanio money, and urges: “Go with me to a notary, seal me there/Your single bond.” William Shakespeare, The Merchant of Venice, (1.iii,472-473).
3. See e.g. Shaw, “The Revised Uniform Law on Notarial Acts: Closing in the Age of COVID-19,” Probate & Property (34:03), 2020.
4. K.S.A. § 53-5a02 (definitions). K.S.A. §53-5a03. The legislature prepared a section-by-section analysis of the new law’s changes. http://kslegislature.org/li/b2021_22/measures/documents/summary_sb_106_2021.pdf. Cf. K.S.A. §§ 53-5a28, -5a29. [
5. K.S.A. § 53-5a20.
6. K.S.A. § 53-5a20(a), (f), (g). The 10 year rule applies even if the notary dies, moves, has her commission revoked or suspended, or becomes incompetent. A notary’s journal can be sent to a state-approved repository for storage, but the Secretary of State’s office needs to be told where the journal is kept. Under Kansas’ old notary law, a journal was optional, and there was no retention requirement.
7. K.S.A. § 53-5a20(b).
8. K.S.A. § 53-5a20(c).
9. K.S.A. § 53-5a07.
10. K.S.A. § 53-5a07(a)-(b).
11. K.S.A. § 53-5a07(c).
12. K.S.A. § 53-5a08.
13. K.S.A. § 53-5a08(a)(1), (2).
14. K.S.A. § 53-5a09(a).
15. K.S.A. § 53-5a16; K.S.A. § 53-5a17.
16. K.S.A. § 53-5a16(a)(1)-(5).
17. K.S.A. § 53-5a16(g).
18. K.S.A. § 53-5a02(m)(1)-(2); K.S.A. § 53-5a18; K.S.A. § 53-5a16(a)(1)-(5). [
19. K.S.A. § 53-5a19.
20. K.S.A. § 53-5a22(a)(2).
21. K.S.A. § 53-5a22(d).
22. K.S.A. § 53-5a22(e).
23. K.S.A. § 53-5a25.
24. K.S.A. § 53-5a25(b).
25. K.S.A. § 53-5a25(c).
26. K.S.A. § 53-5a25(d).
27. K.S.A. §§ 53-5a06, -5a15. The temporary COVID appearance rules are still on the books. K.S.A. § 53-512.
28. K.S.A. § 53-5a21.
29. K.S.A. § 53-5a15.
30. K.S.A. § 53-5a31.
31. K.S.A. § 53-5a04.
32. In Kansas “I declare (or verify, certify or state) under penalty of perjury under the laws of the state of Kansas that the foregoing is true and correct. Executed on (date).” K.S.A. § 53-601(a)(1). In other states, “I declare (or verify, certify or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).” K.S.A. § 53-601(a)(2). The unsworn declarations statute was amended by the new law, effective January 1, 2023.
33. K.S.A. § 53-5a05.
34. K.S.A. § 53-5a07.
35. K.S.A. § 53-5a09(a). Third parties may rely on the notary’s signature and asserted authority as “prima facia evidence” of the notary’s authority. K.S.A. § 53-5a10(b).
36. K.S.A. § 53-5a02(a), (e).
37. K.S.A. § 53-5a11(a); K.S.A. § 53-5a12 (federally recognized Indian tribe); K.S.A. § 53-5a13 (federal notary act); K.S.A. § 53-5a14 (foreign country).
38. K.S.A. §5 3-5a22(c)(3), (f).
39. K.S.A. § 53-5a22.
40. K.S.A. § 53-5a23.
41. K.S.A. § 53-5a24.
42. K.S.A. § 53-5a25.
43. K.S.A. § 53-5a26.
44. K.S.A. § 53-5a27.
45. K.S.A. § 53-5a22(d).
46. K.S.A. § 53-5a22(f), (j).
47. K.S.A. § 53-5a22(k).
48. K.S.A. § 53-5a22(d).
49. K.S.A. § 53-5a25(e)-(g).