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Notary FAQ: Assessing A Signer’s Mental Capacity

Notary FAQ: Assessing A Signer's Mental Capacity

If you’ve ever had to notarize the signature of someone who’s ill, hospitalized or affected by other health issues, you know it can be tough sometimes to tell if the person is signing willingly and knows what they are doing. But do you 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 healthcare 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 healthcare 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 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.

Mike Phillips and Michael Closen, Professor of Law Emeritus at the John Marshall Law School, will cover more questions about assessing a signer’s mental state in their workshop, “Issues Surrounding Mental Capacity for Document Signers” at NNA 2017 in Dallas, Texas, this June. Visit the NNA 2017 home page for more information or to register.

David Thun is an Associate Editor at the National Notary Association.

 

2 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?

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