Notarial Services Attorney, Notary Public, and Apostille

Some of you, especially foreign nationals living in Thailand, may find yourself in a situation where you are required to prove your identity in order to continue receiving your pension or to confirm it really was you who affixed the signature in a power of attorney granting a family member, friend or other representative the authority to conduct a transaction in your home country. You might find yourself in a situation where it is necessary to engage a notary public before you are permitted to proceed. You may have heard the terms apostille and notarial services attorneys as well. The latter term can be found mostly on Thai legal service websites. But how are these terms different?

Notary Public
A notary public or notary is a long-standing profession with roots dating back to the Roman Empire. Their role historically was very similar to that in modern times. A notary's primary responsibilities include witnessing signatures, authenticating documents, and administering oaths. In order to prove that it was really you who signed the contract and not someone attempting to forge your signature, papers are signed in the presence of a notary public, who will verify your identity and sign his or her signature and apply their seal to certify your signature is authentic.

Notaries differ in each country. In the US state of California, for example, a notary is not required to be a lawyer. He or she must be 18 years of age or older and a California resident. To be commissioned, he or she is required to complete a course of study and pass an examination. A California notary can perform his or her notarial acts only in California and commissions are overseen by the California Secretary of State. A notary who is not a lawyer licensed to practice law may not give legal advice.

Apostille
An apostille is a certificate attached to a document for the purpose of authenticating a public document issued by an authority. Because documents can be forged easily, an apostille is useful when you want to ensure a public document issued in your home country, e.g., a birth certificate or diploma, is accepted by the authorities of another foreign country.

An apostille, however, is used only by and between countries that are members of the 1961 Hague Convention abolishing the Requirement of Legalization for Foreign Public Documents (the Hague Convention). Signatories to the Convention do not have to engage in what was often a confusing and complicated process of document legalization, which involved multiple authorities. Instead, once an apostille is issued and attached, it is generally sufficient for the receiving country to be able to confirm that the document is authentic.

In the US, to obtain an apostille, the document must first be notarized in the presence of a notary public commissioned in the relevant state. After being notarized, the document must be submitted to the Secretary of State to authenticate the signature and the seal of the notary. An apostille will then be issued. In the UK, a public document does not need to be notarized by a notary. The applicant must send the document to the Legalisation Office, where the official signature and seal contained will be checked to see if they match the record. If they do, an apostille will be issued and attached to the document. Private documents, such as contracts, must still be notarized by a notary before being submitted to the Legalisation Office.

Thailand, unfortunately, is not yet a signatory to the Hague Convention. For a foreign country to recognize a Thai government document, or for a Thai authority to recognize a document from another country, a Thai embassy and the Department of Consular Affairs will generally need to be involved.

Notarial Services Attorney (NSA)
Thailand does not have a "notary public." Instead, we have what is known as a "notarial services attorney." In contrast to many other countries, only attorneys can be notarial services attorneys, which means they must be licensed to practice law. They will then apply to the Lawyers Council to become a notarial services attorney. Simply put, every NSA must be a licensed attorney, but not every licenced attorney is an NSA. These lawyers have to go through specialist training and an examination, are regulated by the Lawyers Council and have their own additional code of ethics. Their commission lasts for a few years and needs to be periodically renewed.

Their functions are similar to those of a notary public in that they include:

• Certification of a true copy of a document(s)
• Certification of signature(s)
• Oath administration
• Identity verification
• Protest of negotiable instruments

Notwithstanding the fact that a Thai NSA can perform almost every function that a notary can, in some cases, you may be instructed by the person who has asked you for the document, or the document itself, that the authentication process must be in accordance with the Hague Convention. In these circumstances, the authentication cannot be performed by an NSA. An experienced notarial services attorney will ask you about this before accepting your instructions. Our advice is to always first confirm with the person or organization who has requested the document that an NSA is acceptable. In many cases, an NSA’s seal and signature is sufficient.

Examples of services that can be performed by an NSA

• Life verification of a pensioner
• Acknowledgement of receipt of divorce papers or other court documents
• Certification of signatures to be affixed in legal documents e.g., a power of attorney or a contract

Thai NSAs can provide their services throughout Thailand, not just in their usual place of practice. They do not have a specific 'jurisdiction,' unlike notaries public, who can generally only perform their services in the jurisdictions where their commission is granted.

LAFS Legal is a law firm with experienced notarial services attorneys. We would be more than happy to assist you with document authentication services. Please feel free to contact us if you have any inquiry relating to notarial services.