Apostille - The International Notarization

Fourth in a series of articles on the Notary Profession. This article covers the Apostille, which provides a methodology for the International acceptance of Notarizations. Targeted to personal needs, as opposed to business transactions; signatory nations agreed to honor Apostille bearing instruments as if the underlying notarization occurred within their own boarders. The primary effect was to shift "Authentication" of the notarization from the receiving country's Embassy/Consulate to the sending country's State Department or other authorized body.

At The Hague "Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents", 90+ sovereign nations agreed to accept notarized documents, (and documents from numerous other officials); without the need for the more complex and expensive Legalization process. The Legalization process required documents to be processed at the "target" country's Consulate or Embassy. The Apostille processing is done in the country of origination. Legalization is still required for numerous business related documents.

A practical example will clarify the use of the Apostille. Mr. Smith, living in New York City wishes to sell his house in Argentina. He contacts an attorney in Argentina to handle the sale for him. The attorney will require a Power of Attorney (POA) from Mr. Smith giving the attorney authority to sign Mr. Smith's name on various documents. The Argentine authorities require the POA to be notarized. One option for Mr. Smith is to fly to Argentina, and sign the POA in front of a notary in Argentina. An alternative is for Mr. Smith to sign the POA in the presence of a New York notary; and have an Apostille affixed to the document, then ship the Apostille bearing POA to his Argentine attorney. Both procedures are legally equivalent.

A clear distinction between the truthfulness of the content of a document and the validity of the signature must be stressed. Responsibility for the content rests with the person signing the document. An example would be an affidavit, or sworn statement. The affiant's signature, in response to the Notary Oath, (...and that the statements are true and accurate to the best of your knowledge...), establishes the truthfulness of the document. The Notary's stamp and embosser attest to the notary's verification of the affiant's identification. The notary has no requirement to read or validate the content of the document, only the signature. Once the document is notarized, (the notary should take care to use both stamp and embosser), the document can be submitted for Apostille processing.

Not every document qualifies for Apostille Processing. The rules vary greatly with local authorities. In New York, a student's sworn statement that the attached transcript of grades (even if it is an original from their school) is not acceptable for Apostille processing - if the school is located in New York. The state requires the Registrar's signature to be notarized, not the student's. However, if the school is located outside of the City of New York, the student's statement does qualify to receive an Apostille. A similar requirement applies to Birth, Death and Marriage documents - only the signature of the official (handwritten) directly responsible for creating the "certified copy" can be notarized for Apostille processing.

The Apostille represents the end of a chain of verifications. First, the Notary inspects the credentials of the affiant and notarizes the document. Next, the authority (signature and commission expiration date) of the notary is verified by local officials, adding a document attesting to the validity of the notary's signature and seal. Finally, in the case of New York, the Secretary of State, of the State of New York; acting under authority of the Secretary of State of the United States; adds an Apostille to the document. That Apostille is internationally recognized (by signatory nations) as having an authentic and checked signature. I must emphasize that the Apostille adds nothing to the credibility of the content of the document.

Most of my work obtaining Apostles involves "notarial acts" as permitted by the Convention. These notarizations are often the cause of processing rejection. It is absolutely essential that the underlying "base" notarization be completed perfectly! The next step, after notarization, involves a very close scrutiny of the notarization itself. The slightest flaw will cause rejection. Each state has slightly different requirements for proper notarization. It is common that the "venue", or location where the notarization was done be included and a statement by the notary as to the date and name of the affiant. Also, vital for acceptance is a clear notary stamp, with accurate commission expiration date. Embossing should be done on any notarization that is going out of state. The notary must perform the initial notarization correctly; as frequently the affiants are not available for a redo and re-sign.

Some countries, Canada for example; are not signatory to the Hague Convention regarding Apostles. For these nations the processing is exactly the same; however, they are issued a document entitled "Certification" in lieu of an Apostille. At the final step, when the Apostille application is presented with the document; the "target country of use" must be stated. Actually, the Apostille is not specific to a country. The question is asked to determine if an Apostille or Certification should be issued. If an application is submitted for Finland, the Apostille issued is just as valid in Malta.

Thus, the Apostille bearing instrument can achieve near worldwide acceptance. The Apostille (issued at the Sovereign Nation level); verifies the authenticity of the local officials, who in turn verified the validity of the notary. And, that notary initially checked the ID of the person signing the document. It would be impractical if not impossible for a foreign official to conduct such a validation. The presence of the internationally recognized and hard to counterfeit (due to gold seal and embossing) Apostille; facilitates the acceptance of documents for Hague member states.

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