Notaries must ensure signers are aware, willing, and able to understand the document they are signing. This guide explains how to assess signer awareness, when to refuse a notarization, and how state laws address mental capacity.
What does signer awareness mean for Notaries?
Notaries are not medical or psychiatric experts, but they are responsible for determining whether a signer appears aware, willing, and able to understand the transaction at the time of notarization.
Assessing a signer’s awareness generally means observing whether the signer is mentally capable of understanding what’s going on at the time they sign documents.
Common situations where a signer’s awareness may be compromised
These are the most common situations in which a signer’s awareness may be compromised:
- An elderly signer suffering from confusion, dementia or Alzheimer’s.
- Heavily medicated signers, including those facing surgery or in hospice care.
- Signers who are under the influence of alcohol or narcotics past the point of comprehension.
Notarizing documents for signers with Alzheimer’s
Alzheimer’s is a progressive brain disease primarily affecting memory and cognitive abilities, and it’s estimated to impact as many as 5.1 million Americans, according to the National Institute on Aging. In most cases, symptoms appear in people after the age of 60, with symptoms ranging from mild confusion and memory loss to severe cognitive decline.
Alzheimer’s can impair a signer’s ability to communicate with the Notary and understand the nature and consequences of a document being signed. Extra care should be taken if the Notary knows the signer has Alzheimer’s, as the effects of the disease can vary or not be readily apparent.
How Notaries can assess a signer’s awareness
If you suspect that your signer’s level of awareness may be compromised, there are simple, noninvasive steps you can take to help your consideration:
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Introduce Yourself and Explain Your Role
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Ask Open-Ended Questions
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Seek Clarification About the Document
- Introduce Yourself/Explain Your Role: Ease possible tension with a friendly introduction and brief explanation of your role as a signature witness.
- Ask Questions: Ask open-ended questions requiring more than “yes” or “no” answers, which will help determine the signer’s coherence. Focus on non-personal topics such as weather, sports, or weekend plans.
- Seek Clarification: If you are unsure if a signer understands your questions, you can ask them to tell you the title of the document.
What should a Notary do if your signer lacks awareness?
If a signer appears confused, disoriented, or unable to understand the document, a Notary may be required or permitted to refuse notarization, depending on state law.
California does not provide guidelines for Notaries to evaluate a signer’s awareness. However, Civil Code 1189 does require signers to acknowledge to a Notary that they are the person who signed the document when an acknowledgment is performed. If the signer is unable to clearly communicate this, California Notaries should not proceed with an acknowledgment. Similarly, a California Notary should not complete a jurat if the signer is unable to respond clearly when the oath or affirmation is being administered.
Florida specifically prohibits a Notary from performing a notarization if a signer appears unable to understand the nature of the document at the time of notarization or if the Notary knows the signer has been declared mentally incapacitated by a court with appropriate jurisdiction. Massachusetts, Mississippi and New Mexico permit a Notary to refuse a notarization request if the signer appears not to understand what is happening or is unwilling.
In North and South Carolina, the Notary certifies that the signer appears to understand the nature and consequences of the document. Thus, if a signer appears unaware of what they are signing, Notaries in these states should refuse the notarization.
States such as Georgia, Iowa, Montana, North Dakota, Oregon, Rhode Island and West Virginia grant Notaries the authority to refuse to perform a notarization if they are not satisfied that the signer is competent or has the capacity to sign.
A Nebraska regulation urges a Notary to refuse to notarize if the Notary reasonably believes the signer does not understand the document. Texas permits Notaries to refuse a notarization if the Notary has reason to believe the signer lacks capacity to understand the document’s contents or that the signer is being coerced.
As recommended in Article III-C-2 of The Notary Public Code Of Professional Responsibility, for Notaries in states without specific guidelines, the safest course is to refuse to notarize if the Notary has reasonable doubts that the signer understands the consequences of the transaction or the document requiring notarization.
After refusing a notarization
If you have any concerns about a signer’s awareness, note in your Notary journal the steps you took to determine whether to go through with the notarization.
If you do not keep a journal, you should still document this information in case you are later asked for an explanation.
In the case of an inebriated, sick, or heavily medicated signer, you may offer to return at a later time when he or she is in a more coherent state to complete the signing.
Notary safety and professional responsibility
A Notary’s duty to public protection should never place personal safety at risk. If you feel threatened by an individual at a notarization, or that refusing a notarization would place you in imminent danger, go ahead and complete it. Then report the situation to your local law enforcement immediately.
Related Articles:
Notary FAQ: Assessing a signer’s mental capacity
Additional Resources:
NNA Hotline