Last week, we shared the real-life situation of an unwilling elderly signer who told the Notary she didn’t want to sign a power of attorney — but only after the notarization was completed and her relatives had left with the document. We asked our Notary community what you would do in this situation, and received many different opinions on how the situation should have been handled.

Your Answers
 

Many Notaries said that if they were faced with this situation after a notarization, they would notify their local agency that handles elder abuse claims.

“A signer who has been pressured to sign, and then admits this to the Notary after the fact, puts the Notary in a very difficult and potentially dangerous situation,” said Louis B. Gill. “At this point, the only thing left to do is report it to Elder Abuse, and/or local officials, and get the Notary out of the middle.”

“I would have her write a written statement detailing what had happened leading up to this event and what occurred up to the moment she informed me she was signing under duress,” Notary Public Elizabeth Gonzalez said. “I would then contact the police and inform them of what had transpired and also make myself available for any witness statement that is required.”

Abraham Kamara said he would not only notify authorities, but also make a note of the signer’s wishes in his journal. “This will be part of my record, in case a question arises regarding that particular signing,” he said.

However, other readers disagreed that notifying authorities is the proper response because during the notarization the elderly woman appeared willing to sign, coherent and there were no signs of coercion from other family members present.

“All Notary requirements were met — ID, competence, understanding document and willingness to sign,” said Notary Public Fred Dellar. “The Notary did what they were supposed to do. The signer’s statement came after the fact and when all transactions were complete. I would have suggested that the signer should have said something earlier and told her to contact an attorney.”

Still others felt the Notary in the situation made a mistake by not removing the other family members from the room when notarizing and speaking with the signer privately during the notarization. “I would have completed my journal entry first and then asked all the relatives to leave the room,” said Notary Michael E. Harris.

NNA Recommendations
 

This scenario can place any Notary in a difficult situation.

In the real-life event, the Notary contacted the authorities, and an investigation was opened. In response, the signer’s relatives filed a defamation lawsuit against the Notary.

Unfortunately for the Notary, her errors and omissions insurance policy did not cover her for the allegations of libel and slander, and she had to pay more than $10,000 in attorney’s fees out of her own pocket to be dismissed from the lawsuit.

Despite the Notary’s actual experience, reporting the situation to your local law enforcement or senior agency is the right thing to do, but there are some steps you can take to protect yourself before, during and after the notarization:

• If others are present with the signer, ask them to step out of the room so you can speak to the signer alone before you complete the notarial certificate on the document.
• If the signer goes through with the notarization and then says they didn’t want to sign, try to have them on the phone with you when you report it to the authorities.
• Make sure to document everything in your journal in case your actions are challenged. If there is not enough room, keep a record of it elsewhere.
• Make sure you understand what your Notary E&O policy does and does not cover. These policies cover you for errors or omissions related to the notarization only. Read the exclusions clause of your policy carefully. In addition to libel and slander, you’ll discover willful acts, bodily injury and destruction of personal property, among others, are typically excluded.
• If you are self-employed, consult with your local insurance agent about a business owner’s policy that protects you against risks excluded from Notary E&O policies. These types of polices are not available from the NNA. If you work for a business or other organization, ask your boss if you are covered under your employer’s policy.

Related Articles:

What's Keeping Notaries Awake At Night

FAQs From Notaries About Powers Of Attorney

Additional Resources:

NNA Webinars: Commonly Asked Questions

NNA Hotline