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Notary FAQ: Assessing a signer’s mental capacity

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Updated 3-11-24. When you notarize for someone who’s ill, hospitalized or affected by other health issues, it can be hard to tell if the person is willing and knows what they are doing. But do Notaries have a legal obligation to judge a signer’s mental capacity?

Mike Phillips, Director and Supervising Attorney with the Jewish Family Service Patient Advocacy Program and an NNA 2015 Notary of the Year Honoree, spoke with the Notary Bulletin to answer some common questions about a signer’s mental capacity.

1. What does assessing a signer’s “mental capacity” mean when performing a notarization?

It’s a tricky term, but I would say: Having the mental ability to understand the contents of the document that the person is about to sign, in combination with a reasonable understanding of the implications and consequences from signing the document.

2. Do Notaries have a legal obligation to assess a signer’s mental capacity?

There’s a difference between a legal requirement and a standard of professional practice. Even if not required by law, it’s a good professional practice to look for signs that the signer may be unaware, confused or unable to communicate.

3. Since Notaries usually aren’t doctors or trained health care professionals, how should they assess a signer’s mental state?

The bulk of my work is done with people in psychiatric hospitals, so this is an ongoing issue for me. You have to be careful with people in a hospital setting. On the one hand, you want to protect a person in a fragile state from being forced to sign. On the other hand, Notaries need to be careful not to set so high a bar that you prevent someone who hasn’t lost capacity from signing.

Personally, I tend to look for “negative” warning signs or symptoms. If the signer is communicating incoherently, or there are family members or others in the room insisting the documents be signed but the person seems unable or unwilling, those are all red flags.

4. If a family member or other party insists on proceeding with a notarization even if the signer appears confused, what should the Notary do?

You can request the person leave the room. But be sensitive to the signer’s feelings. Don’t forcibly throw a family member out if it upsets the signer. But again, if there’s someone else present urgently demanding the document be notarized and the signer seems confused or unwilling, that’s a clear red flag that something is wrong.

Sometimes it’s suggested that Notaries ask a staff member or doctor at a health care facility about a signer’s condition. But remember you have to be careful of privacy laws regarding medical information. A doctor or caregiver may not be allowed to share sensitive medical information with you.

5. Any suggestions about how Notaries can avoid being entangled in lawsuits or legal claims regarding a signer’s mental capacity?

Don’t get yourself into a situation where you could be caught up in a lawsuit if a bit of careful practice can prevent it. In situations like this, document details about the notarization in a written record. If you use a journal, document any positive or negative concerns about the signer’s condition in your journal entry. That should help reduce the risk of possible legal proceedings for negligence.

David Thun is the Editorial Manager with the National Notary Association.

Related Articles:

5 tips when notarizing for medical patients

A Notary’s role in preventing elder financial exploitation

Additional Resources:

The Notary Public Code of Professional Responsibility

View All: Best Practices


Add your comment

Lupe Shanklin

08 May 2017

If the mental capacity of the signed is in my opinion questionable, can I just refuse to notarize their document?


09 May 2017

Can't you also simply decline to perform the notary act? Do you have to explain why in that case?

Teddi Hall

30 Apr 2018

Question; Can a Notary refuse to notarize a document if they feel the the signer is being pushed into signing or does not appear to be mentally able to understand the process?

National Notary Association

30 Apr 2018

Hello Teddi. To help us answer your question can you please tell us what state you are commissioned in?

Daniel Lovejoy

02 May 2018

Whether or not it is a legal requirement, I carry insurance required by the state to ensure I do my job correctly. I carry additional insurance for errors and omissions. I do not want to put myself into a position where I might be required to invoke the insurance. By law, I cannot act as an attorney, and I cannot act as a physician. I can, however, use my common sense to protect myself and my business.

Jacque Rogers

16 May 2018

Very good article. Working at a State mental hospital for 15 years, I have refused many notarizations because of mental incapacity. When a visitor is asking me to notarize a paper a patient is signing, I immediately call their social worker to ask if the patient has the mental capacity to understand what the visitor has brought in.

Robert Gilmore

29 Apr 2019

If someone is trying to force someone without the mental capacity to sign is there anyone a notary could report to so that another notary or body would be aware?

National Notary Association

30 Apr 2019

Hello. If you have reason to suspect a signer is a victim of elder abuse or fraud, you could contact local law enforcement or a local agency that handles elder abuse cases:

Terri Shannon

29 Apr 2019

It is my understanding that if a person “resides” in a group home, assisted living , hospital or care facility in the State of Nevada And I am notarizing a Power of Attorney- there must then be a note from the Doctor stating the person is capable to sign attached to the document.

Aida Gonzalez

29 Apr 2019

I love this clarification on your bulletin. I had a situation in the past which I would like to share with you. I'm a singing agent in the State of Florida, and I was called to perform a closing in a rehab location where both borrowers were in. I called the borrower to confirm the appointment and he was very clear and understanding of the documents he will be signing, so I feel comfortable; when I arrived to the rehab center, I went to his room and asked several questions which he answered very well. and said I will come back let me get a chair for me. I asked where his wife was, a social worker representative went with me to the other side of the building to meet her, she was seated in a wheelchair near the nurse center area; and was sleeping, the social worker called her and she look at us, a little confused, so I asked her some questions , she answered that her husband asked her to sign some papers but didn't know for what, her right hand was bent, she was not alert at all; at that time the social worker told me, nobody in this center will be witness for this signing, so I decided not to perform signing. I went back to see her husband, and explained that I couldn't do the closing, he starting to blame and called his son, who start to yield on me over the phone and promise to come and be a witness for his mom signature, I was firm and said that I was leaving. (they were taking out $95 k for the equity of the property.) going back I called the title co, and explained to them all the situation. I always m very alert on this special situations and is a high red flag.


30 Apr 2019

I am a CA notary and I wanted to thank you for this article. I would, however, want to know what wording would I use to decline the notarization? I want to be sympathetic to the signer and the family but I don’t want to give my reasons for declining. Only because I don’t want to open a door for legal battles. Any suggestions? Also, when I have already declined would I document it on my journal even though I did not notarize the document? In CA we have to keep a journal. Thank you.

National Notary Association

30 Apr 2019

Hello. Regarding the journal, it is always a good practice to document the reason for your refusal and providing details to support it in your journal entry.

Donna Aguirre

01 May 2019

I have had similar situations, and hesitated to notarize a document in a rehap center, wile I waited with a lady her brother came in and they argues, finally a doctor came over to me and said the patient was not having a good day and this should be postponed until she could understand what she was looking at, I told the brother and sister that I was not able to notarize a document if she was not able to understand it and they needed to discuss further what they were trying to do, since they were arguing in front of me it was very suspicious. they could call me when the doctor felt she was up to the task, they did not call back.

Scott A Eisenhart

13 May 2019

Since I am not a healthcare professional, I would have to take the advice from the medical professionals: MD or RN and Case Worker and not perform the notarization. I am a new Georgia Notary.

Darlene Capasso

20 Jan 2020

My dad’s Will was made in NJ, in 1977. Without a notary seal, which wasn’t required at that time. Seven years ago, the will was look over by an attorney, who never noticed the seal wasn’t there. Upon his recent death, we were told his will was invalid. Could the seal, have been entered when he was coherent, seven years previously. Never wanted the will changed at all. But, needless to say, it was a nightmare identifying ourselves as the children and every signature of the lawyer and witnesses were dead. Could this have been fixed 7 yrs., ago. My dad was diagnosed with a long progressive Alzheimer’s, but was coherent and able to sign, 7 yrs., ago.

National Notary Association

22 Jan 2020

Hello. We are sorry for the difficulty you have encountered, but unfortunately we cannot answer legal questions regarding if it was possible to correct a will or not at a certain time. Any such legal questions would have to be answered by a qualified attorney.

William Longley

06 Feb 2020

If during the divorce process my spouse was romantically involved with a private investigator and a public notary and he helped her to fill out her paperwork and notarized her paperwork is this legal?

National Notary Association

06 Feb 2020

Hello. We're sorry, but that is a legal question that would need to be answered by a qualified attorney.

10 Apr 2020

Be advised is you follow the recommendation to "...use a journal, document any positive or negative concerns about the signer’s condition in your journal entry. That should help reduce the risk of possible legal proceedings for negligence", you maybe violating Privacy Laws. In Texas your journal is a matter of public record.

Verne Gordon

16 Apr 2020

I retired last year after being a California notary for a number of years. I had at least 3 cases where I did not proceed with the notarization based on the health of the person that was going to sign. One person was completely handicapped in bed and could not speak or handle a pen to make a mark. One person was blind (I was not told of this upfront) and did not seem to understand what was going on. The last was an older person who seemed nervous and her 'family' was pushing to get her to sign. In all 3 cases, I made an entry in my journal to describe the situation and politely, but firmly explained that I was unable to complete the notarization.

Youaren't A Doctor

30 May 2020

Yall better be careful, please realize you ARE NOT a physician and any decisions on Mental Capacity better be damn certain😂😂

Marilyn Taylor

07 Dec 2020

Can my sister notarize my father’s signature after she has found out he is incapacitated?

National Notary Association

10 Dec 2020

Hello. Normally a signature cannot be notarized if the signer is unable to communicate with the Notary at the time of notarization. Also, some states prohibit notarizing for a close family member such as a parent. Can you tell us what state your sister is commissioned in, so we can provide you with specific information for that state?

Alejandro Verdéi

26 Dec 2020

I'm a notary in Ca. Got a call to notorize a power of attorney from an ill lady, but told she was not mentally able sometimes, I told them I couldn't notarize if she is not capable. Are there other ways? Her health is compromised if decisions are not made for her health

National Notary Association

04 Jan 2021

Hello. Any questions about a signer's legal options in the event of metal incapacity would need to be answered by a qualified attorney.


27 Jan 2021

I was told the signer is showing signs of early onset Alzheimer's. In my presence the signer is alert, coherent and completely understands what he needs to sign. Is this enough to deem him mentally capable? My concern is that I was told that at times he does have hallucinations and can't remember people. But again IN MY PRESENCE, at the time of signing he appeared to be in his right state of mind.

National Notary Association

29 Jan 2021

Hello. Please see this article for suggestions when dealing with a signer with possible Alzheimer's:

Kathie Lindquist

26 Feb 2022

Can a notary be of use. If one cannot afford an attorney or and has dementia thats made him unable to verbalize what his caretaker wants. Even if this 93year old man doesn’t have a valid license. All the notary needs to verify is his signature? Please reply. I’m praying that this hasn’t happened yet. But I see he has just died today. Please help advise me on how I can hopefully help his children. If the home is gifted to the care taker.

National Notary Association

28 Feb 2022

Hello. We're sorry, but Notaries who are not attorneys cannot give legal advice to customers.

Mary millour

24 Mar 2022

In FL, if a customer has been deemed incapacitated by a court -no go- find their guardian if there is one. FL statutes also say the signer must understand the document at the time of signing. May have to make a second trip if they are having an off day. Hospital staff have told me patient incapable of signing. That’s a fine line considering the way the law reads. In that case, I have to refuse. I can’t take on the hospital!


03 Apr 2022

Do you have any suggestions for wording a refusal to notarize a document for someone who I may feel is being coerced into signing by a family member who is present? This has not happened to me yet, but I would like to be prepared. I am commissioned in Texas.

National Notary Association

07 Apr 2022

Hello. There are no specific guidelines for how you should word a refusal. However, we can provide the following information from Texas Notary law as a reference for you: “A notary is authorized to refuse to perform a notarial act if: “(1) the notary has reasonable grounds to believe that the signer is acting under coercion or undue influence; “(2) the notary has reasonable grounds to believe that the document in connection with which the notarial act is requested may be used for an unlawful or improper purpose; “(3) the notary has reasonable grounds to believe the signing party does not have the capacity to understand the contents of the document; “(4) the notary is not familiar with the type of notarization requested” (1 TAC 87.42[a]).


20 Mar 2023

I've been a Ca notary for 42 yrs. I was a nurse in my first career. I have been given letters from drs that say their patient is competent to sign papers, but when I am with their patient, they are not oriented to time date and place. Now this can happen with a mentally sound young person in a short number of days. So I don't think this is always reliable but I will note it in my journal if they can or cannot state time, date and place. Also, I will insisted on being with the signer alone- no one else present, so that I can talk to the signer and have a general conversation and I will ask them to tell me what the document is and what they think it is going to mean when they sign it. I note their comment. I also inform them that they do not have to sign it if they do not want to or if they are unsure of anything. I note this also. We should not notarize when a person is on narcotics but no medical personnel can legally tell us even though after surgery they are likely on narcotic pain killers. But if they are coherent and speak about the document and its consequences I will do it. Just like when I do a signing and I can smell alcohol on their breath or observe them to be drinking at signing I will note this and if they were coherent and alert and could discuss the paperwork. The best way I determine competency is to insist that the person who is signing is the one who calls me to set up the appointment NOT a well meaning family member or anyone else. Most of the time, the signer never calls to make the appt which is just as well, I just eliminated lots of legal problems for myself. It's save time wasted going to an appointment to go thru all the above for nothing and to find an ID problem on arrival. Even after explaining what a valid ID and about the expiration date, and that the ID name matches the way they are signing, they will lie. People just want what they want. They think that once you are there you will do anything in order to get a fee. People often don't think they owe you a travel fee if you don't end up notarizing due to incompetency or in ID problem. I know notaries who charge a substantial travel fee , paid on arrival, and a separate fee for notarization which is paid at the time of notarization ,IF it can be done. I have been sued twice, not found guilty of anything, and am glad I had E&O ins that reimbursed 8k costs of defending myself with a lawyer. I m sorry but this is what experience has taught me. Be careful and protect yourself.

Doris D Cromartie

24 Mar 2023

In my case, the person drying to obtain the POA prevent notary from seeing the person for which the POA was for. I personally did not see the signer, therefore I was not going to falsely notarize POA.

Leticia O

25 Mar 2024

I am a Notary in California, and my husband needs to do a power of attorney for his mother, which she is still capable today, but she is starting to forget things, I cannot since it is for my husband correct?

National Notary Association

29 Mar 2024

Hello. In California, “A notary public who has a direct financial or beneficial interest in a transaction shall not perform any notarial act in connection with such transaction. “For purposes of this section, a notary public has a direct financial or beneficial interest in a transaction if the notary public: “(a) With respect to a financial transaction, is named, individually, as a principal to the transaction. “(b) With respect to real property, is named, individually, as a grantor, grantee, mortgagor, mortgagee, trustor, trustee, beneficiary, vendor, vendee, lessor, or lessee, to the transaction” (GC 8224). If you are unsure if notarizing a document is a potential conflict of interest, the safest course is always to have a different, uninvolved Notary perform the notarization.

Irma Pfeffer

28 Mar 2024

If you feel the person sitting next to The Signer is too pushy can you cancel the appt?

National Notary Association

29 Mar 2024

Hello. To help us answer your question, can you please tell us what state you are commissioned in, and more details about the nature of the situation?

Theresa Shannon

03 Apr 2024

It is my understanding that in Nevada if the person is “residing” in a Hospital, group home or facility a note from the signers primary care physician stating they are capable to sign needs to be attached to the document. I know other Notaries in my area do not practice requiring this, but, I never go into a Hospital, Assisted Living Facility, Rehabilitation Center or group home without confirmation that the note is attached. Then I note in my Journal that it was attached. In the past a Judge has told me my consistency in this due diligence is what settled the case brought forward from a family member claiming that the elderly person didn’t understand what they were signing.

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