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Notary FAQ: Assessing A Signer’s Mental Capacity

elder-signer-mental-new-res.jpgUpdated 4-24-19. When you notarize the signature of someone who’s ill, hospitalized or affected by other health issues, it can be tough sometimes 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, what methods can they use to 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 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 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 an Associate Editor at the National Notary Association.

 

14 Comments

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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?

Kim

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: https://www.hhs.gov/answers/programs-for-families-and-children/how-do-i-report-elder-abuse/index.html

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.

Norma

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.

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