HI Notary Prohibited Acts and Misconduct 2 — Questions and Answers
Question 1: A Hawaii notary is asked to notarize a document in which they are named as a beneficiary. What should the notary do?
- Notarize if the signature is genuine
- Refuse — a notary cannot notarize a document in which they have a direct financial or beneficial interest (Correct answer)
- Notarize with a disclosure statement in the journal
- Notarize only if they are not the primary beneficiary
Correct answer: Refuse — a notary cannot notarize a document in which they have a direct financial or beneficial interest
A notary with a direct financial or personal interest in the document must refuse to notarize to avoid a conflict of interest.
Hawaii notary law and the general principle of notarial neutrality prohibit a notary from notarizing a document in which they have a direct beneficial or financial interest. Being named as a beneficiary creates a conflict of interest that disqualifies the notary. Even if no explicit fraud is intended, the notarization could be challenged and invalidated. The notary should refer the signer to another notary with no personal stake in the document.
Question 2: Which of the following constitutes notarial misconduct under Hawaii law?
- Charging the maximum statutory fee for a notarization
- Performing a notarization for a close family member without disclosing the relationship (Correct answer)
- Refusing to notarize a document because the signer has no ID
- Keeping a notary journal
Correct answer: Performing a notarization for a close family member without disclosing the relationship
Notarizing for a close family member is generally prohibited because of the conflict of interest, and not disclosing such a relationship can constitute misconduct.
Under Hawaii notary law, a notary should not perform notarial acts for immediate family members (spouse, children, parents, siblings) because of the inherent conflict of interest. Even if no financial benefit is gained, the relationship compromises the notary's impartiality. Failing to disclose or recuse in such situations can constitute misconduct subject to disciplinary action by the DCCA or Attorney General's office.
Question 3: A Hawaii notary is asked to backdate a notarial certificate to reflect a date when the signer was previously present. This is:
- Permissible if the signer consents in writing
- A form of fraud and a serious violation of Hawaii notary law (Correct answer)
- Acceptable for estate planning documents only
- Allowed with a supervisor's authorization
Correct answer: A form of fraud and a serious violation of Hawaii notary law
Backdating a notarial certificate is fraudulent and illegal, regardless of who requests it or for what purpose.
A notarial certificate must accurately record the date on which the notarial act was actually performed. Backdating — entering a date other than when the act took place — is a form of fraud that can be used to deceive courts, lenders, heirs, or government agencies. This constitutes both notarial misconduct and potentially criminal fraud under Hawaii law. No consent by the signer, no purpose, and no authorization by an employer or supervisor can justify backdating.
Question 4: Under Hawaii law, may a notary public give legal advice about a document they are notarizing?
- Yes, if the notary is also a licensed attorney (Correct answer)
- No — giving legal advice while acting as a notary is unauthorized practice of law unless also licensed as an attorney
- Yes — explaining the document is part of the notary's duty
- Only for real estate documents
Correct answer: Yes, if the notary is also a licensed attorney
A notary who is also a licensed Hawaii attorney may provide legal advice. However, acting solely as a notary does not authorize providing legal advice.
In Hawaii, as in all states, a notary public acting in their notarial capacity is not authorized to provide legal advice, draft legal documents, or explain the legal significance of a document — these constitute the practice of law. However, if the same person happens to also be a licensed Hawaii attorney, they may provide legal advice in their capacity as an attorney (not as a notary). A notary who is not an attorney and provides legal advice could face both notarial discipline and charges of unauthorized practice of law.
Question 5: A notary is offered a $100 tip for expediting a notarization. May the notary accept this in Hawaii?
- Yes — tips are personal gifts and not subject to notary fee rules
- No — accepting fees beyond the statutory maximum is a violation (Correct answer)
- Only if it is not recorded in the journal
- Yes, if the signer voluntarily offers it
Correct answer: No — accepting fees beyond the statutory maximum is a violation
Hawaii sets maximum fees for notarial acts. Accepting payment above that maximum, whether called a 'tip' or not, violates the fee statutes.
Under HRS §456-16, Hawaii sets maximum fees that a notary may charge per notarial act. Accepting any additional payment — even if framed as a voluntary gift or tip — for the performance of a notarial act exceeds the statutory maximum and constitutes a violation. The fact that the signer offers it voluntarily does not make it permissible. The notary could face disciplinary action for accepting fees beyond the statutory limit.
Question 6: A Hawaii notary stamps and signs a certificate without the signer being present, planning to have the signer appear later. This practice is:
- Permitted if the signer appears within 24 hours
- A serious violation — the notarial act must occur in the presence of the signer at the time of signing (Correct answer)
- Standard practice for busy notaries
- Allowed for remote online notarization only
Correct answer: A serious violation — the notarial act must occur in the presence of the signer at the time of signing
Pre-signing or pre-sealing notarial certificates before the signer appears is a serious violation and invalidates the notarization.
One of the most fundamental rules of notarial practice is that the notary must be present with the signer when performing the notarial act. Pre-signing or pre-sealing a certificate in anticipation of a signer's later appearance is sometimes called 'notarizing in advance' and is a serious violation. The notarial certificate attests that specific events occurred at a specific time in the notary's presence. Pre-certifying those events before they happen constitutes fraud and misconduct under Hawaii law.
HI Notary Prohibited Acts and Misconduct 2
A Hawaii notary is asked to notarize a document in which they are named as a beneficiary.
What should the notary do?