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What Would You Do Answers: The Case Of The Childlike Signer

What Would You Do Answer: The Case Of The Childlike Signer

Last week we posted a scenario where you are asked to notarize trust documents for a 30-year-old man. But the signer appears to have the mental capacity of a child.

The key issue here involves the signer’s awareness of what he is signing. He is an adult. He has a state-issued ID card. But he appears disinterested in the documents, and his brother and aunt help him answer your questions.

What You Said
 

“In this situation, I would ask if I could speak with the individual alone and maybe start up with small talk, so I can see if he has the ability to hold a conversation,” wrote Notary Kelly J. Bennett. “After, I would ask him to look at the document to see if he understands (it). If I believe that he does understand, then I would proceed with the notarization. I would also document all processes in my journal. If I believe that he does not understand, then I would not proceed. I would also document that in my journal.”

Most of the commentators agreed with Bennett and would ask the brother and aunt to leave the room.

“I would ask for a few minutes alone with the signer to make sure he knew what he was signing, what rights he may be giving up by signing, what happens if he does not sign, and if he is doing this by his own free will,” noted Bruce Balding.

Ceciia Delemos had a different approach: “I will allow the brother and the aunt to be present as long as they do not intervene or respond for him.”

Not everyone agreed that they had a duty to judge the signer’s awareness. “As a Notary, I am only acknowledging a signature,” wrote John Clark. “If I refuse to notarize, they will merely shrug and visit one of those all-in offices on the street, where they don't ask tricky questions. So I'd say, check the ID in the usual way, notarize and move on.”

Standards of Notary Practice
 

While no one expects a Notary to make an expert medical or psychiatric judgment about signers’ mental capacity, there is a general expectation that you should make a reasonable, commonsense determination that a signer is aware of what they’re signing.

Depending on the state, you may have a legal obligation.

In Florida, for example, a Notary Public may not notarize a signature on a document if it appears that the person is mentally incapable of understanding the nature and effect of the document at the time of notarization. In Oregon, Notaries may refuse to notarize if they are not satisfied the signer is competent or has the capacity to sign the document. A number of other states, such as Texas, also allow Notaries to refuse to notarize for this reason.

Indiana and Illinois Notaries are prohibited from notarizing for individuals who have been declared mentally incompetent by a court.

Laws in North and South Carolina note that completing a notarial certificate implies that “the person whose signature was notarized did not appear in the judgment of the notary to be incompetent, lacking in understanding of the nature and consequences of the transaction.”

Other states, such as California, do not address a signer’s mental capacity. In those jurisdictions, The Notary Public Code of Professional Responsibility provides strong standards of professional practice that should be followed. Section III-C-1 notes that a Notary should not notarize for any person if the Notary has a “reasonable belief that can be articulated that the person at the moment is not aware of the significance” of the document.

In determining the signer’s mental capacity, most Notaries believe that they need to ask the brother and aunt to leave the room. This is not always necessary. Many people suffering from dementia or other medical issues that affect their capacity rely on family and friends as their support system and may feel more comfortable with them present. Deciding to ask the aunt and brother to leave should be based on your judgment of how they are interacting with the signer.

In any event, a few simple questions about the document asked in a friendly tone should help you determine of the signer is aware of what they’re signing.

As many Notaries commented, make sure to include in your Notary journal entry the steps you took.

Michael Lewis is Managing Editor of member publications for the National Notary Association.

 

 

6 Comments

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Robert E. Pliley

19 Jun 2017

This article seemed to clarify the items needed before notarizing a document.

David W Krause

19 Jun 2017

I've had to decline a couple of signings in the past because they signer was, in my opinion, not lucid enough to understand the nature and/or purpose of the documents. Creates an uproar, but I don't assist with fraud, and people with dementia being defrauded by their children is, to my knowledge, a significant area of fraud.

Rose Marie

19 Jun 2017

Actually we're not psychiatrists and people that work with mental health where notaries and we're there to make sure that the appropriate person that is signing whatever document is that person and if that person if that person is childlike a 30 but maybe that person might be going to a psychiatrist or might have parents and would have to be in the room but we're definitely not psychiatrist for other people to leave the room and try to get information out of the person needing the notary

Dave Wiser

19 Jun 2017

I'm concerned about some of the comments Bennett made after asking the other family members to leave. Aside from knowing what was being signed, the questions continued with knowing what rights were being given up and consequences of not signing. This appears to border on offering legal advice which we are not allowed to do. I'd be more careful with the questions about the document being signed.

Eddie Owens

19 Jun 2017

asking the client a series of questions to prove awareness and understanding was the best way to test the signer.

Nancy

17 Jul 2017

Go with your gut feeling. If it doesn't seem right ask questions to make sure that the husband really wants to do this. Try to keep conversation going for a couple minutes to see even the wife's reaction. If he still feels like he is backing out don't risk it by doing the notary. I would apologize and just be straight up I'm sorry but unfortunately I can't notarize the documents. You will need to find another notary. One fake or forced notary, no matter what the amount of money you get paid is not worth it.

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