In New South Wales, two types of public officers can perform services related to confirming identities and witnessing documents of a legal and binding nature.
The one most commonly used is a Justice of the Peace (JP), who can be used for things such as certifying true copies of original documents, witnessing affidavits and statutory declarations.
The second type is a Notary Public (also known as a Public Notary) who is used for more significant forms of legal verification.
What is a Notary Public?
Whilst all of the rights and responsibilities of Justice of the Peace are also conferred on a Notary, the reverse is not true. For example, a Notary Public can verify documents for international use.
A Notary can apply through the Legal Profession Admission Board to be appointed by the Supreme Court pursuant to the Public Notaries Act 1997 when they have satisfied the following requirements:
- a lawyer with at least 5 years of legal practice; and
- completion of the prescribed Notarial Practice Course
A Notary has more responsibilities than a Justice of the Peace. They are granted their own seals or stamps for use in Australian, international and courts in foreign countries.
Notary services relating to acts of verification include:
- Verifying a person’s identity by witnessing their signature or fingerprints;
- Taking a witness’s statement for official use;
- Certifying the correctness of a document permitting it to be taken as an original in international courts of law;
- Authenticating documents for domestic or international purposes;
- Completing certificates of law in overseas courts; and
- Notarising documents going overseas.
For documents going overseas, a Notary Public must know which process is necessary for the documents to be fully validated. The process can require between one to three steps including:
- Notarising the document before it is sent overseas;
- Authenticating the document with the Department of Foreign Affairs and Trade; and
- Sending the document overseas to the relevant legal agency for approval and verification.
The types of documents a Public Notary is accustomed to verifying and certifying include many that are entered into by people on a relatively regular basis, including: trusts, loan documents, powers of attorney, estates, contracts (including both land conveyance and business contracts), deeds and licenses.
Legal verification is a necessary and protective move when entering into any of these documents, as it maximises all involved parties’ legal protection.
Using a Notary Public to verify of any of these documents gives the document complete authenticity. The parties ensure that everyone signing the document or partaking in the contract, license or loan is of sound mind and well informed of the effects of signing the document.
How is a Notary Public different to a JP?
A Notary can officiate over and administer oaths, affirmations and give legal advice and services. A Justice of the Peace can’t do any of these.
The types of services that a Notary Public can perform include:
- Acknowledging deeds and other conveyance of land and property;
- Taking declarations and legal affirmations including affidavits;
- Processing notes of bills and exchange; and
- Providing notice to foreign drafts.
Using a Notary for significant domestic transactions and for all overseas legal issues is imperative. One of the most common uses of the services of a Notary, is for Estate concerns, including Wills and Trusts, and Power of Attorney.
These documents deal with sensitive legal issues that are strongly dependent upon the understanding and mental capacity of the signatories. Paramount in the legal validity of these documents is verification of identity, signature, and the mental clarity and ability to enter into such agreements.