What legislation governs the appointment of a Commissioner for Taking Affidavits in British Columbia

AustraliaEditIn all Australian states and territories (except Queensland) notaries public are appointed by the Supreme Court of the relevant state or territory. Very few have been

What legislation governs the appointment of a Commissioner for Taking Affidavits in British Columbia

AustraliaEdit

In all Australian states and territories (except Queensland) notaries public are appointed by the Supreme Court of the relevant state or territory. Very few have been appointed as a notary for more than one state or territory.

Queensland, like New Zealand, continues the practice of appointment by the Archbishop of Canterbury acting through the Master of the Faculties.[7]

Australian notaries are lawyers and are members of the Australian and New Zealand College of Notaries, the Society of Notaries of New South Wales Inc., the Public Notaries Society of Western Australia Inc, and other state-based societies. The overall number of lawyers who choose to become a notary is relatively low. For example, in South Australia (a state with a population of 1.5 million), of the over 2,500 lawyers in that state only about 100 are also notaries and most of those do not actively practice as such. In Melbourne, Victoria, in 2002 there were only 66 notaries for a city with a population of 3.5 million and only 90 for the entire state. In Western Australia, there are approximately 58 notaries as at 2017 for a city with a population of 2.07 million people. Compare this with the United States where it has been estimated that there are nearly 5 million notaries for a nation with a population of 296 million.

As Justice Debelle of the Supreme Court of South Australia said in the case of In The Matter of an Application by Marilyn Reys Bos to be a Public Notary [2003] SASC 320, delivered 12 September 2003,[8] in refusing the application by a non-lawyer for appointment as a notary:

As a general rule, an applicant [for appointment as a notary] should be a legal practitioner of several years standing at least. Even a cursory perusal of texts on the duties and functions of a public notary demonstrates that a number of those functions and duties require at the very least a sound working knowledge of Australian law and commercial practice. In other words, the preparation of a notarial act plainly requires a sound knowledge of law and practice in Australia especially of the due preparation and execution of commercial and contractual instruments. It is essential that notaries in this state have a sufficient level of training, qualification and status to enable them efficiently and effectively to discharge the functions of the office.

Historically there have been some very rare examples of patent attorneys or accountants being appointed, but that now seems to have ceased.

However, there are three significant differences between notaries and other lawyers.

  • the duty of a notary is to the transaction as a whole, and not just to one of the parties. In certain circumstances a notary may act for both parties to a transaction as long as there is no conflict between them, and in such cases it is their duty is to ensure that the transaction that they conclude is fair to both sides.
  • a notary will often need to place and complete a special clause onto or attach a special page (known as an eschatocol) to a document in order to make it valid for use overseas.
    In the case of some documents which are to be used in some foreign countries it may also be necessary to obtain another certificate known either as an "authentication" or an "apostille" (see above) (depending on the relevant foreign country) from the Department of Foreign Affairs and Trade.
  • a notary identifies themselves on documents by the use of their individual seal. Such seals have historical origins and are regarded by most other countries as of great importance for establishing the authenticity of a document.

Their principal duties include:

  1. attestation of documents and certification of their due execution for use internationally
  2. preparation and certification of powers of attorney, wills, deeds, contracts and other legal documents for use internationally
  3. administering of oaths for use internationally
  4. witnessing affidavits, statutory declarations and other documents for use internationally
  5. certification of copy documents for use internationally
  6. exemplification of official documents for use internationally
  7. noting and protesting of bills of exchange (which is rarely performed)
  8. preparation of ships' protests
  9. providing certificates as to Australian law and legal practice for use internationally

It is usual for Australian notaries to use an embossed seal with a red wafer, and now some notaries also use an inked stamp replicating the seal. It is also common for the seal or stamp to include the notary's chosen logo or symbol.

In South Australia and Scotland, it is acceptable for a notary to use the letters "NP" after their name. Thus a South Australian notary may have "John Smith LLB NP" or similar on his business card or letterhead.

Australian notaries do not hold "commissions" which can expire. Generally, once appointed they are authorized to act as a notary for life and can only be "struck off" the Roll of Notaries for proven misconduct. In certain states, for example, New South Wales and Victoria, they cease to be qualified to continue as a notary once they cease to hold a practicing certificate as a legal practitioner. Even judges, who do not hold practicing certificates, are not eligible to continue to practice as notaries.

Notaries in some states of Australia are regulated by legislation. In New South Wales the Public Notaries Act 1997 applies and in Victoria the Public Notaries Act 2001 applies.

There are also Notary Societies throughout Australia and the societies keep a searchable list of their members. In New South Wales, The Society of Notaries of New South Wales Inc.; in Queensland The Society of Notaries Queensland Inc.; in South Australia the Notaries' Society of South Australia Inc. and in Victoria, The Society of Notaries of Victoria Inc..

Notaries collecting information for the purposes of verification of the signature of the deponent might retain the details of documents which identify the deponent, and this information is subject to the Privacy Act 1988. A notary must protect the personal information the notary holds from misuse and loss and from unauthorised access, modification or disclosure.

All Australian jurisdictions also have justices of the peace (JP) or commissioners for affidavits and other unqualified persons who are qualified to take affidavits or statutory declarations and to certify documents. However they can only do so if the relevant affidavit, statutory declaration or copy document is to be used only in Australia and not in a foreign country, with the possible exception of a few Commonwealth countries not including the United Kingdom or New Zealand except for very limited purposes. Justices of the peace (JPs) are (usually) laypersons who have minimal, if any, training (depending on the jurisdiction) but are of proven good character. Therefore, a US notary resembles an Australian JP rather than an Australian notary.

Notaries in Brazil need to pass stringent exams in addition to holding law degrees. Civil life in Brazil relies upon the notary public system heavily. Brazilian notaries public specialize in seven main areas: 1. Civil Records; 2. Notes. 3. Real Estate Records; 4. Credit Notes and Documents; 5. Protest of Credit Notes; 6. Business Enterprises Records; and 7. Central Notaries (a.k.a. "Distribution Notaries). Brazilian notaries have a hybrid nature. They are private but appointed by the Judiciary and are recognized as an official authority ("dotado de fé pública").

Canadian notaries public (except in the Province of British Columbia and Quebec) are very much like their American counterparts, generally restricted to administering oaths, witnessing signatures on affidavits and statutory declarations, providing acknowledgements, certifying true copies, and so forth.

British ColumbiaEdit

In British Columbia, a notary public is more like a British or Australian notary. Notaries are appointed for life by the Supreme Court of British Columbia and as a self-regulating profession, the Society of Notaries Public of British Columbia is the regulatory body overseeing and setting standards to maintain public confidence.[9] A BC notary is also a commissioner for taking affidavits for British Columbia, by reason of office. Furthermore, BC notaries exercise far greater power, able to dispense legal advice and draft public instruments including:

  • Notarization  notarizations/attestations of signatures, affidavits, statutory declarations, certified true copies, letters of invitation for foreign travel, authorization of minor child travel, execution/authentications of international documents, passport application documentation, proof of identity for travel purposes
  • Real estate law  home purchase/sale; business purchase/sale; mortgages and refinancing; residential, commercial, and manufactures home transfer of title; restrictive covenants and builder's liens
  • Wills and estate planning  preparation and searches of last wills and testaments, advance directives, representation agreements and power of attorney
  • Contract law  preparation of contracts and agreements, commercial lease and assignments
  • easements and right of way
  • insurance loss declarations
  • marine bills of sale and mortgages
  • marine protestations
  • personal property security agreements
  • purchaser's side for foreclosures
  • subdivisions and statutory building schemes
  • zoning applications

Nova ScotiaEdit

In Nova Scotia a person may be a notary public, a commissioner of oaths, or both. A notary public and a commissioner of oaths are regulated by the provincial Notaries and Commissioners Act.[10] Individuals hold a commission granted to them by the Minister of Justice.

Under the Act a notary public in has the "power of drawing, passing, keeping and issuing all deeds and contracts, charter-parties and other mercantile transactions in this Province, and also of attesting all commercial instruments brought before him for public protestation, and otherwise of acting as is usual in the office of notary, and may demand, receive and have all the rights, profits and emoluments rightfully appertaining and belonging to the said calling of notary during pleasure."[10]

Under the Act a commissioner of oaths is "authorized to administer oaths and take and receive affidavits, declarations and affirmations within the Province in and concerning any cause, matter or thing, depending or to be had in the Supreme Court, or any other court in the Province."[10]

Every barrister of the Supreme Court of Nova Scotia is a commissioner of oaths but must receive an additional commission to act as a notary public.

"A Commissioner of Oaths is deemed to be an officer of the Supreme Court of Nova Scotia. Commissioners take declarations concerning any matter to come before a court in the Province.".[11] Additionally, individuals with other specific qualifications, such as being a current Member of the Legislative Assembly, commissioned officer of the Royal Canadian Mounted Police or Canadian Forces may act as if explicitly being a commissioner of oaths.

QuebecEdit

In Quebec, civil-law notaries (notaires) are full lawyers licensed to practice notarial law and regulated by the Chamber of Notaries of Quebec. Quebec notaries draft and prepare major legal instruments (notarial acts), provide complex legal advice, represent clients (out of court) and make appearances on their behalf, act as arbitrator, mediator, or conciliator, and even act as a court commissioner in non-contentious matters.[12] To become a notary in Quebec, a candidate must hold a bachelor's degree in civil law and a one-year Master's in notarial law[13] and serve a traineeship (stage) before being admitted to practice.

The concept of notaries public in Quebec does not exist. Instead, the province has Commissioners of Oaths (Commissaires à l'assermentation) who may administer oaths in Quebec (and outside of Quebec, if authorized) for a procedure or a document intended for Quebec (or Federal matters). A Quebec commissioner for oaths can not certify documents or attest that a copy of a document is in accordance to the original; only a notaire can do it.

The central government appoints notaries for the whole or any part of the country. State governments, too, appoint notaries for the whole or any part of the states. On an application being made, any person who had been practicing as a Lawyer for at least ten years is eligible to be appointed a notary. The applicant, if not a legal practitioner, should be a member of the Indian Legal Service or have held an office under the central or state government, requiring special knowledge of law, after enrollment as an advocate or held an office in the department of Judge, Advocate-General or in the armed forces.[14][15]

Notary public is a trained lawyer that should pass some special examinations to be able to open their office and start their work. Persian meaning of this word is سردفتر means head of the office and their assistant called دفتریار. Both these persons should have bachelor's degree in law or master's degree in civil-law.

Plaque with the arms of the Faculty of Notaries Public in Ireland

There is archival evidence showing that public notaries, acting pursuant to papal and imperial authority, practised in Ireland in the 13th century, and it is reasonable to assume that notaries functioned here before that time. In Ireland, public notaries were at various times appointed by the Archbishop of Canterbury and the Archbishop of Armagh. The position remained so until the Reformation.

After the Reformation, persons appointed to the office of public notary either in Great Britain or Ireland received the faculty by royal authority, and appointments under faculty from the Pope and the emperor ceased.

In 1871, under the Matrimonial Causes and Marriage Law (Ireland) Amendment 1870, the jurisdiction previously exercised by the Archbishop of Armagh in the appointment of notaries was vested in and became exercisable by the Lord Chancellor of Ireland.

In 1920, the power to appoint notaries public was transferred to the Lord Lieutenant of Ireland. The position in Ireland changed once again in 1924 following the establishment of the Irish Free State. Under the Courts of Justice Act, 1924 the jurisdiction over notaries public was transferred to the Chief Justice of the Irish Free State.

In 1961, under the Courts (Supplemental Provisions) Act of that year, and the power to appoint notaries public became exercisable by the Chief Justice. This remains the position in Ireland, where notaries are appointed on petition to the Supreme Court, after passing prescribed examinations. The governing body is the Faculty of Notaries Public in Ireland. The vast majority of notaries in Ireland are also solicitors. A non-solicitor, who was successful in the examinations as set by the governing body, applied in the standard way to the Chief Justice to be appointed a notary public. The Chief Justice heard the adjourned application on 3 March 2009 and appointed the non-solicitor as a notary on 18 July 2011.[16]

In Ireland notaries public cannot agree on a standard fee due to competition law. In practice the price per signature appears to be 100. A cheaper alternative is to visit a commissioner for oaths who will charge less per signature, but that is only possible where whoever is to receive a document will recognize the signature of a commissioner for oaths.

A notary public is a lawyer authorized by the Attorney General.[17] The fees are regulated by the Notary Public (Fees) Rules 1954.

A commissioner for oaths is a person appointed by the Chief Justice under section 11 of Court of Judicature Act 1964, and Commissioners for Oaths Rules 1993.[18]

New ZealandEdit

A notary public in New Zealand is a lawyer authorised by the Archbishop of Canterbury in England to officially witness signatures on legal documents, collect sworn statements, administer oaths and certify the authenticity of legal documents usually for use overseas.[19]

The Master of the Faculties appoints notaries in the exercise of the general authorities granted by s 3 of the Ecclesiastical Licences Act 1533 and Public Notaries Act 1833. Recommendations are made by the New Zealand Society of Notaries, which normally requires and applicant to have 10 years' experience post admission as a lawyer and 5 years as a Law Firm Partner or equivalent.[20]

Sri LankaEdit

Notaries in Sri Lanka are more akin to civil law notaries, their main functions are conveyancing, drafting of legal instruments, etc. They are appointed under the Notaries Ordinance No 1 of 1907.[21] They must pass exam held by the Ministry of Justice and apprentice under senior notary for a period of two years. Alternatively, attorneys at law who pass the conveyancing exam are also admitted as a notary public under warrant of the Minister. The Minister of Justice may appoint any attorney at law as a commissioner for oaths, authorized to certify and authenticate the affidavit/documents and any such other certificates that are submitted by the general public with the intention of certifying by the commissioner for oath.

United KingdomEdit

England and WalesEdit

After the passage of the Ecclesiastical Licences Act 1533, which was a direct result of the Reformation in England, all notary appointments were issued directly through the Court of Faculties. The Court of Faculties is attached to the office of the Archbishop of Canterbury.

In England and Wales there are two main classes of notaries: general notaries and scrivener notaries. Their functions are almost identical. All notaries, like solicitors, barristers, legal executives, costs lawyers and licensed conveyancers, are also commissioners for oaths. They also acquire the same powers as solicitors and other law practitioners, with the exception of the right to represent others before the courts (unless also members of the bar or admitted as a solicitor) once they are commissioned notaries. In practice almost all English notaries, and all Scottish ones, are also solicitors, and usually practise as solicitors.[22]

Commissioners of oaths are able to undertake the bulk of routine domestic attestation work within the UK. Many documents, including signatures for normal property transactions, do not need professional attestation of signature at all, a lay witness being sufficient.

In practice the need for notaries in purely English legal matters is very small; for example they are not involved in normal property transactions. Since a great many solicitors also perform the function of commissioners for oaths and can witness routine declarations etc. (all are qualified to do so, but not all offer the service), most work performed by notaries relates to international matters in some way. They witness or authenticate documents to be used abroad. Many English notaries have strong foreign language skills and often a foreign legal qualification. The work of notaries and solicitors in England is separate although most notaries are solicitors.[23] The Notaries Society gives the number of notaries in England and Wales as "about 1,000," all but seventy of whom are solicitors.

Scrivener notaries get their name from the Scriveners' Company. Until 1999, when they lost this monopoly, they were the only notaries permitted to practise in the City of London. They used not to have to first qualify as solicitors, but they had knowledge of foreign laws and languages.

Currently to qualify as a notary public in England and Wales it is necessary to have earned a law degree or qualified as a solicitor or barrister in the past five years, and then to take a two-year distance-learning course styled the Postgraduate Diploma in Notarial Practice. At the same time, any applicant must also gain practical experience. The few who go on to become scrivener notaries require further study of two foreign languages and foreign law and a two-year mentorship under an active Scrivener notary.

The other notaries in England are either ecclesiastical notaries whose functions are limited to the affairs of the Church of England or other qualified persons who are not trained as solicitors or barristers but satisfy the Master of the Faculties of the Archbishop of Canterbury that they possess an adequate understanding of the law. Both the latter two categories are required to pass examinations set by the Master of Faculties.

The regulation of notaries was modernised by section 57 of the Courts and Legal Services Act 1990.

Notarial services generally include:

  • attesting the signature and execution of documents
  • authenticating the execution of documents
  • authenticating the contents of documents
  • administration of oaths and declarations
  • drawing up or noting (and extending) protests of happenings to ships, crews and cargoes
  • presenting bills of exchange for acceptance and payment, noting and protesting bills in cases of dishonour and preparing acts of honour
  • attending upon the drawing up of bonds
  • drawing mercantile documents, deeds, sales or purchases of property, and wills in English and (via translation), in foreign languages for use in Britain, the Commonwealth and other foreign countries
  • providing documents to deal with the administration of the estate of people who are abroad, or own property abroad
  • authenticating personal documents and information for immigration or emigration purposes, or to apply to marry, divorce, adopt children[24] or to work abroad
  • verification of translations from foreign languages to English and vice versa
  • taking evidence in England and Wales as a commissioner for oaths for foreign courts
  • provision of notarial copies
  • preparing and witnessing powers of attorney, corporate records, contracts for use in Britain or overseas
  • authenticating company and business documents and transactions
  • international Internet domain name transfers

ScotlandEdit

Notaries public have existed in Scotland since the 13th century and developed as a distinct element of the Scottish legal profession. Those who wish to practice as a notary must petition the Court of Session. This petition is usually presented at the same time as a petition to practice as a solicitor, but can sometimes be earlier or later. However, to qualify, a notary must hold a current Practising Certificate from the Law Society of Scotland, a new requirement from 2007, before which all Scottish solicitors were automatically notaries.

Whilst notaries in Scotland are always solicitors, the profession remains separate in that there are additional rules and regulations governing notaries and it is possible to be a solicitor, but not a notary. Since 2007 an additional Practising Certificate is required, so now most, but not all, solicitors in Scotland are notaries  a significant difference from the English profession. They are also separate from notaries in other jurisdictions of the United Kingdom.[25]

The profession is administered by the Council of the Law Society of Scotland under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

In Scotland, the duties and services provided by the notary are similar to England and Wales, although they are needed for some declarations in divorce matters for which they are not in England. Their role declined following the Law Agents (Scotland) Amendment Act 1896 which stipulated only enrolled law agents could become notaries and the Conveyancing (Scotland) Act 1924 which extended notarial execution to law agents. The primary functions[26] of a Scottish notary are:

  • oaths, affidavits, and affirmations
  • affidavits in undefended divorces and for matrimonial homes
  • maritime protests
  • execution or certification for foreign jurisdictions, e.g., estates, court actions, powers of attorney, etc.
  • notarial execution for the blind or illiterate
  • entry of a person to overseas territories
  • completion of the documentation required for the registration of a company in certain foreign jurisdictions; and
  • drawing for repayment of Bonds of Debenture

United StatesEditIn the United States, a notary public is a person appointed by a state government, e.g., the governor, lieutenant governor, state secretary, or in some cases the state legislature, and whose primary role is to serve the public as an impartial witness when important documents are signed. Since the notary is a state officer, a notary's duties may vary widely from state to state and in most cases, a notary is barred from acting outside his or her home state unless they also have a commission there as well.

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