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Notary Basics: Determining A Signer’s Awareness

Chandler-resized.jpgUpdated 5-22-19. Notaries are not expected to be medical or psychiatric experts. But you should still pay attention to whether a signer appears aware and willing to conduct business requiring a notarization. In some states this critical evaluation of a person’s awareness of the transaction is a legal requirement.

Assessing a signer’s awareness generally means observing whether the signer is mentally aware enough to understand what’s going on at the time they sign documents. 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.

Assessing 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:

  • Introduce/Explain Yourself: 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 If Your Signer Lacks Awareness?

If your signer appears confused, disoriented or uncertain, you may be required to refuse the notarization — depending on your state’s laws.

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 do not permit notarizing 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 Iowa, Montana, North Dakota, Oregon and West Virginia, which have adopted the Revised Uniform Law on Notarial Acts (RULONA), 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.

Georgia law also includes this permission, and 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.

In Rhode Island, it is considered a recommended practice for a Notary to refuse to notarize for a signer if the Notary has doubts that the signer understands the consequences of the transaction or the document requiring notarization. For Notaries in states without specific guidelines, following Rhode Island’s recommended practice is the wisest course of action.

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.

One Final Word On Safety

If you feel threatened or that refusing a notarization would place you in imminent danger, go ahead and complete it. Then report the situation immediately afterwards to your local law enforcement.

Kelle Clarke is a regular contributor to the National Notary Association.

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You can learn about Notary practices for your state from your state's Notary regulating agency website or your state’s Notary handbook. Check out the NNA’s Notary Primers or U.S. Notary Reference Manual, which is a NNA member benefit. The NNA’s Notary Essentials eLearning course guides you through all your state's requirements.

Additional Resources:

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14 Comments

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Julie

15 Jun 2015

Thank you for this article! Perfect timing - I've been asked to be a witness and notarize a new will for an elderly woman who is going through a difficult time with her family. I do not know any members of the family (including the elderly woman). I was contacted through social media as a friend of a friend. I had planned on asking her questions before notarizing the document to determine her mental health and this has educated me as I have never notarized a will in this respect. Michigan does not require wills to be notarized but because of circumstances, I've been asked if I would be willing to notarize a new will since her husband passed away many years ago and the attorney is demanding several hundred dollars for a copy of the current will (I do not know the background on why she doesn't already have a copy). I have another question though. If there are family members present during the notarization of the new will, should I ask all family members to step outside while I question her? I don't want her to feel she is being pressured and/or intimidated. Any other suggestions?

National Notary Association

17 Jun 2015

Hi Julie. Yes, if you're concerned that family members appear to be influencing or pressuring a signer, you may ask them to step outside so you can speak to the signer privately to ensure the signer isn't being coerced.

L. A. Rust

15 Jun 2015

I notarize only business documents for my employer and personal documents for my fellow employees, so am rarely in the position of having to make decisions on a signer's competency. However, my co-workers have asked about situations where this topic comes up, as well as questions about oaths, fingerprint requirements, etc. I've gotten into the habit of saving many of your "Notary Basics" articles as PDF's to send to the people raising these questions, and they have found them to be extremely helpful and appreciate my having them available. I also keep a printed copy in my Journal to refer to should the subject come up during a notarization. Thank you for keeping us informed as to common sense and best practices, so we may continue to deliver a professional and educated service to our communities.

Deborah J Conner

26 Jun 2015

If the person is in a facility check with the staff to confirm mental status. even if she is at home ask if a physician has diagnosed any type of mental status. i always request that the family leave the room and ask the client to explain to me what she is signing, who is going to be the executor, beneficiary, why is she signing now, if her answer is because they told me to! that is not an answer. the lawyer needs to make other arrangements. if she is capable to carry on a conversation and speak clearly about the contents, relatives, all is good to go, and notarize. that just has always been my policy. but in california we only notarize wills if a lawyer requests, wills are only witnessed in california, but the same tests still apply.

Terri G.

13 Jun 2016

In addition to the mentioned scenarios, on a few occasions I have been asked to notarize powers of attorney for mentally challenged adult family members. In each case I believed the family's intentions were good, yet it was clearly evident or highly doubtful that the signer understood anything about the document. Of course the families were upset that I would not complete the notarization when they needed the power immediately and “all you have to do is just stamp it”. Although I realized they should probably pursue applying for guardianship and/or conservatorship, which would take time to obtain, I was unable to suggest that course of action. Instead, I recommended legal counsel be sought on how to proceed to get the authorization they clearly needed. It can be so frustrating when things like this are put off and not taken care of ahead of time.

Mike Lacy

17 Oct 2016

The family member just had a stroke the provider needs a power of attorney to start taking care of the family members choirs is there anything they can do to get a document notarized?

National Notary Association

19 Oct 2016

Hello Mike. That is a legal question that would need to be answered by a qualified attorney.

Jeanne Yomine

08 May 2017

My only experience with an elder woman was when she came to me with her son and his wife. The son was doing all the talking. Before I agreed to notarize "mom's" signature, I took the time to question her without letting the son answer my questions. By her tone of voice and answers to my questions it was clear that she did not need her son to speak for her and in fact asserted her opportunity to have her say. She agreed to sign and I notarized her documents.

Jeanne Yomine

12 Jun 2017

I really liked Terry G.'s comments. I will not forget how clearly requiring guardianship and/or a conservator is appropriate and this could also apply not only for potential mental concerns but for elder seniors who seem mentally challenged. I work for a law firm, so I can usually rely on our attorneys; and they sit in the room with me and their client(s). Over the years there have been exceptions outside of work as long as we agreed to meet in a public location such as a library. If I agreed to meet in someone's home, I think as a condition I would like to tape record the session as well as recording it in my book. I am never without my "notary bible" either. It is a small book published by the Association - "Sorry, NO CAN DO!"

D H Evans

12 Jun 2017

California law is inadequate in protecting the elderly or mentally challenged. I test the signer by asking if he can identify other people in the room. I ask the signer if he understands what he is signing. If I suspect the signer is incompetent I decline to do the notarization.

Robin Madison

16 Aug 2018

I have a friend whose mother had a massive stroke 11 years ago. She is unable to speak but I had a friend look up the deed to her mom's home. Seems the mother's husband did POA in 2009 but did not file it until 2015. He then had his wife's name removed from the deed and out his son's name on the deed. Now my friend gets none of her mother's home when she passes. We live in Florida. Her mother's belongings and Jewelry should go to her but we think that maybe the sons wife may have taken all the mother's possessions. My friends stepfather assured her that everything was 50/50,get obviously lied. The friend that looked up the deed said my friends mother's signature was a scribble. She never would have excluded her daughter,her only child. These 2 sneaks took advantage. I don't understand how a notary could have thought this poor woman was competent to sign anything,I honestly don't believe she knew what she was doing when they made her sign those papers.

ALFRED BRACY

27 May 2019

I STRONGLY BELIEVE THAT CROOKS AND CRIMINALS ARE OUT THERE TO HAVE DOCUMENTS SIGNED AND NOTARIZED BY A NOTARY PUBLIC. THEY WILL LIE, CHEAT, STEAL, HURT, OR KILL IN ORDER TO HAVE A DOCUMENT SIGNED AND NOTARIZED BY NOTARY PUBLIC COMMISSIONED OFFICER OF THE STATE OF NEW YORK OR OTHER STATES OUT THERE. NOTARY MUST TAKE PRECAUTION AND DON'T NOTARIZE DOCUMENTS THAT ARE SUSPICIOUS AND ILLEGAL TO SIGN AND NOTARIZE WITH YOUR SAFETY SEAL OR EMBOSSER. DOCUMENT COULD COME BACK FALSE AND ILLEGAL AND YOU AS A NOTARY COULD BE HELD ACCOUNTABLE AND LOOSE YOUR LICENSE, PUT IN JAIL OR BOTH. PROTECT YOURSELF AND BE VERY CAREFUL IN WHO YOU DO BUSINESS WITH IN TODAY'S SOCIETY. ALFRED BRACY NOTARY PUBLIC FIRE FIGHTER US ARMY

Frankie Martinez

29 May 2019

If a client is unable to sign or even mark a grant of deed because they are in severe pain, have a broken arm in a cast (their dominant hand) and are on hospice care, can their POA sign on their behalf in California?

National Notary Association

30 May 2019

Hello. Please see the following article for more information: https://www.nationalnotary.org/notary-bulletin/blog/2016/09/notarizing-for-physically-impaired-signers

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