What Would You Do: The case of the childlike signer

The Notary Hotline receives hundreds of calls daily from Notaries nationwide who find themselves in challenging situations. To boost your knowledge of Notary standards of practice, we’ve created a series of scenarios based on actual situations and ask a simple question: What would you do?

In this scenario, you are presented with a special challenge. You are called to a home to notarize a set of trust documents. When you arrive, the signer, a 30-year-old man, is playing a video game. He’s there with his brother and aunt.

The signer appears more interested in the video game than the documents. After a minute, his aunt gets him to pay attention to the task at hand. You ask for his ID, and he digs out a state-issued ID card from a drawer. You make a little small talk, and it quickly dawns on you that he has the mental capacity of a 10-year-old.

While he seems to understand the documents, you are not sure. And both his brother and aunt help him with his answers.

What would you do?

The challenge here involves your duty to determine the signer’s awareness. He is an adult, and he says he understands what he’s signing. But his childlike conduct raises concerns. How would you handle this situation?

To participate in this week’s “What Would You Do?” scenario, share your answers in the comments section below. We may mention your response in next week’s Bulletin, when we offer the best possible answer(s) to this notarial challenge.

Notary Basics: Determining a signer’s willingness

Can I notarize for a signer who has Alzheimer’s disease?

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50 Comments

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MARIA ANDERSON

07 Jun 2017

i would have the aunt be the credible witness and write it on my journal

Mister J

08 Jun 2017

Plenty of adults play video games. The average gamer is about 35 to 40 years old. That really has nothing to do with ANYTHING, and drawing conclusions from that would be awfully presumptuous. And attention spans have nothing to do with intelligence or mental capacity. Let's face it... to most people, signing and notarizing a document is just a formality they want to quickly get over with and get back to whatever else they were doing. So the only relevant part of this scenario is the signer's level of understanding of the document, and the fact that the brother and aunt seem to be coaching his responses. Before notarizing, I would ask to speak to the signer alone, and then use open-ended questions to determine his understanding of the document. If they don't want to do this, then I would decline notarization and recommend that they go to a law firm specializing in family law (with proper expertise to determine somebody's mental competence) in order to get everything sorted out. Caution is the key. Determining if it's OK to notarize something is like determining if food is spoiled: "When in doubt, throw it out."

Sarah

12 Jun 2017

I would ask the aunt and brother to leave the room and then chat with the signer. If he appears to understand what he is signing, then I would go ahead and notarize the document. If he appears NOT to understand the document, I would refuse the notarization.

terri

The first answer is very frustrating to me. In order to be a credible witness in Nevada- I must know them personally and they must not be related to the principle in any way. I am not sure what you're witnessing? Yes- if after being alone the principal seems unclear or confused I would refuse this notary and refer them to a lawyer. I would ask if the person has a conservator or guardian as well.

Beth

The ableist language in this scenario is alarming. As someone who works with adults with autism, many of my clients would present this way. They would present as disinterested in the documents even though they understand them and they would not engage with small talk. Also, unless the notary is educated enough to recognize mental capacities (which take testing to confirm) there's no way for someone to know someone has the mental capacity of a 10 year old. I realize the goal of this scenario is to help notaries build awareness of what they should do in a scenario such as this, but this is poorly written. In an ideal world, more people (including notaries) would be able to recognize that someone's apparent functioning doesn't make them less capable of understanding even if they have difficulty verbally communicating their understanding.

Gloria Lloyd

Well said!

Nawal O Antoin

As long as the signer is abel to hold the pen and sign same time aware of and under sat and the document , I can preform the notarization.

James

I'm almost 30 and I play video games. Many adults do as well. It would be presumptuous to say that the video games mean he is incompetent. I agree that it's unprofessional and discourteous to continue to play them when you're visited by a guest, namely a notary who is there to conduct official business. But the video games themselves don't really show anything bad. As far as the notarization is concerned. If he understands the documents then I would do the notarization. There's no reason not to.

Cindy V

The issue is not that he plays video games, the issue is his potentially diminished mental capacity. If he is developmentally challenged or suffering from a brain injury, he may be incapable of truly understanding the document and may be easily manipulated into doing whatever his family tells him to do. Based on the scenario, his family is coaching him, so I would immediately ask to speak with him alone. If the family refused to allow me to speak with him alone, I would immediately refuse the notarization. If given the time with him, as I am not qualified to diagnose developmental disorders or other medical problems, I would need to glean whether he is choosing to sign the document with full knowledge of its meaning and without coercion. Therefore, I would ask him to describe the basics of the document and, if he appears to understand that, I would ask him questions to determine his willingness to execute the document. If I was unable to determine his understanding of what he was signing and its ramifications and/or I felt that he wasn't signing willingly, I would refuse to do the notarization and make a note in my journal documenting it. If it appeared to me that he met the requirements for notarization, I would perform the notarization, but I would also write notes into my journal documenting the situation, how I handled it, and my conclusions.

There

I agree completely with Mister J's comment.

Karen Storm

I have been the aunt in real life. I give guidance to both my brother and nephew. My brother is competent but needs help with complex issues such as estate planning, My nephew, on the other hand, is easily manipulated by others. I have looked into the process of having him legally declared incompetent to handle his finances and it is extremely difficult to do. A family law firm cannot determine if a person is competent, it has to be done by a doctor or psychiatrist. If I had doubts, I would ask if the person is legally competent to sign and note that in my journal. I would also ask direct questions to confirm the signers understanding of the document and note that in my journal.

Frank Bagnato

No question, I would have the family members leave the room and ask the signer questions to determine his level of understanding. If they refuse, or if the signer becomes agitated, I would have no alternative but to call the service who sent the order to me and ask them what they'd like me to do, since it's clear I can't complete the signing.

Dawn

I would ask to speak to the person who is signing alone. If I feel that he still does not seem to completely understand the questions then I would recommend that they go to a lawyer. I don't feel the video games have anything to due with whether the person understands or not.

Carol Lynch

As the parent of an adult special-needs beneficiary, mentally competent to sign, our trust documents did not require his signature. However, there was no Will, DPA or HIPPA documents for him, just for the parents. To ensure the trust documents were legally binding, we sought the assistance of a law firm specializing in family law/special needs beneficiaries. If the trust documents do not meet the federal/state requirements for special needs beneficiaries, it could cost them their SSI income/Medicaid assistance, etc. FYI - Aside from the question, for families with special needs beneficiaries, there is a fairly new federal/state program 'ABLE' that also can help provide a way to maintain income for the special needs beneficiary for housing, transportation, medical care, etc.

Virginia M Davis

I more than likely would ask for an attorney or the Trust Administrator to be present to make sure the man is actually being properly represented.

Ray C. Eier

I would ask the man what effect his signing has on the transaction and go from there.

Jay

To avoid the potential of a lawsuit, a notary might not witness the signing. But, a lot of states probably do not have laws that require a notary to make an independent judgment of a person's mental capacity. Along the same lines, I have performed Notary services for blind people who could not read what they were signing and for quadraplegics that could not hold a pen, but could push a button to move a rubber stamper with their signature. Looking at your State's laws would be a good place to start, then decide your level of risk if something were go wrong.

Bryan

Beth on 12 Jun 2017 is spot on. I would also be concerned if the trust documents were anything other than a Certification of Trust. A red flag would be pop up if they were trying to take something away from him in the trust.

Rose

If there is a question regarding mental capacity it should be handled the way you would if there is a question regarding the signer understanding the document being signed. We are not doctors or attorneys... When in doubt...witness

Lisa R

I would ask the brother and aunt to leave the room and talk with the signor to see if he truly does understand what he is signing. If I am still uncertain as to whether he understands what he is signing, then I would not perform the notary.

Michael Green

Having a credible witness to a potentially fraudulent transaction may make the notary feel better, but it's not about covering our own butts here. The awareness test is there for a reason, to help prevent the most vulnerable citizens from being victimized by their own hand. I'm sympathetic to families with children who have developmental disabilities, like by late brother, or who have independent seniors who aren't ready or willing to sign off on powers of attorney. Been there, done that, but that doesn't make the POA any less important. Your refusal to notarize a document in a setting where awareness is at issue could help prompt that family to pursue a POA with the appropriate sense of urgency AND you'd be covering your own butt at the same time. Win-win.

Billy Bob

For Beth. You're right, but that's the inherent bias in all of us. Others have said it, when in doubt, we're not healthcare experts nor knowledgeable enough to understand mental capacity in this situation. It may be cruel or wrong to you, but in the end this practice should protect those with genuine issues that people are out to get. What if the "relatives" were impostors?

Kelly J. Bennett

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. After, I would ask him to look at the document that is being notarized, to see if he understands the document. I would also ask him if that is his signature on the document. 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 with the notary. I would also document that in my journal. I would explain to the family that they might need to look for another Notary Public or an Attorney.

JI in California

Prior to all my appointments I email or text a 'Signers Preparation' document. In it lists how to be prepared for the signing and requests eliminating distractions. If the above scenario still occurs, I would do similar as others have mentioned and first, ask for the signers undivided attention, then, if that's not met, ask for the others to leave the room to question the signer.

Linda

What if the adult has a conservator? Ca law gives their conservator power to proceed to sign for their protection. Would the conservator need to sign for them? They are their representative.

aeaster111@icloud.com

I wouldn't complete the notarization. Signer doesn't appear to understand the document or its consequences. In addition, the mental age displayed is that of a competent signer. I believe they should seek court permission

John Clark

Let's face it, as a notary, I am only acknowledging a signature. If for all of the above reasons I refuse to notarize, they will merely shrug, and visit one of those all-in office on the street, where they don't ask tricky questions, and are in it for profit. So I'd say, check the i.d. in the usual way, and notarize and move on. You too run a business without much overhead other than training.

Bruce Balding

Regardless what they are doing ( video games ) you should be able to know by asking the right questions what the mental state of this man is. First it says he is 30 but has the mind of a 10 year old. How did I find this information out? Was it from those family members who are answering every question for him? I would ask for a few minutes alone with the signer to make sure he knew 1. What he was signing. 2. What rights he may be giving up by signing. 3. What happens if he does not sign. 4. If he is doing this by his own free will or if he is being pressured to sign. If he understands everything to my approval then he signs but with notes added by me of what took place. If for ANY reason I have a skeptical thought then no, I could not authorize the signing. Then let them know why and what proper steps they would need to take to have this completed.

A C Dye

I would contact the NNA hotline for guidance...if asking the individual if they understand what they are signing and they do not answer in the affirmative ...I would not feel they have enough understanding to know what they are doing...Having credible witnesses, in Ca. you need two...what if the witnesses are doing something that would hamper the individual by having them sign something for their own benefit...so the NNA hotline would be my best bet....Now if this were a signing of loan documents...I would contact the lender for guidance....and provide my sense that the individual is not aware of what they are signing......

K Grant

As an attorney/notary it is more than verification of identity. I am always cognizant that I will be held to a higher standard of care. In my state it is always a question of capacity. Did the signer have the capacity to understand what he or she was signing? With elderly signers, if they present with any indication of a possible diminished capacity the first thing I ask about is medical history and diagnosis. Family members are usually willing to tell you about medical history. If there is a medical history where a Doctor has declared a diagnosis of a condition then there is a record of diminished capacity. That leads me to the second tier of questions where I want to find out if there has been an adjudication of the condition. Is there an appointed guardian or personal representative for the individual. If there has been no court proceeding declaring the signer incapacitated then the law in my jurisdiction says they can sign if they have a clear understanding of what they are doing. Then I have to decide from what I am observing whether they are clear to sign. In this case, the video game doesn't matter. What matters is the answer to my two questions. What is his medical history? Has there been any adjudication regarding his capacity? I would observe the family carefully to determine the credibility of the answers.I would also speak directly with the signer to determine his knowledge of why I was present. If it appears from the totality of the circumstances that the signer did not understand and its possible I am being lied to then I would not go forward with the signing and I would make my reasons clear.

Teresa Ferguson

I would check with the Aunt and see if he has a legal guardian, then go from there.

Ceciia Delemos

As a notary public, I have the obligation and the power to ask direct questions to any person who is about to sign a document in my presence. In this case, I will allow the brother and the aunt to be present as long as they do not intervene or respond for him, to make sure that: A) He makes eye contact with me. B) He understands that I am Notary Public and why I am there. C) He knows how to read and write. D) He understands the contents or purpose of the document he is about to sign. E) His willingness to sign. F)He is not acting under pressure or duress. This step may sound difficult to determine but normally, people speak loudly with their body language than with words. Mentally challenged persons may appear "perfectly normal" under familiar settings. Others are easily manipulated by family members or close acquaintances to do or sign a document. If his answers are vague or inaccurate, I can ask him to tell me today's date, what he had for breakfast, his date of birth and then go back to my initial questions. I perceive any indication that he doesn't understand what he is about to do, I refuse the service and make an entry in my journal with as many details as possible.

Jenna

I would ask ‘The Individual’ if he had a General Power of Attorney filed with the courts. If so, I would request the POA document for verification and continue the notarization with the designated legal General Power of Attorney. I would advise them to print “signing on behalf of (‘The Individual’)”, conveying that they are the POA of ‘The Individual’. In my journal under ‘Additional Information’, I would notate the POA Court Case No., ‘The Individual’s State ID Information & notate that the POA signed in lieu of the individual. If not, I would decline and explain.

Deborah Rhoden

First, I would ask to speak with the person alone to see what answers I got without the relatives coaching assistance. I've noticed that family members of disabled persons sometimes offer assistance when it is not needed. It's like they don't see what the person is capable of doing or understanding. I would never assume that the person was incapable of understanding just because relatives "helped" with the answers. I've seen disabled persons dismissed by family, as if they don't count. It infuriates me to see disabled persons treated in that manner.

Nina Torres

I would not immediately assume that his childlike behavior implies that he doesn't understand what he would be signing to. I would ask some nuanced questions about the document and what signing the document means to see if he understands the implications of signing. I would tell his family members that I needed to hear him answer the questions alone. If I felt satisfied in his comprehension and willingness to sign, I would continue forward with the notarization. If he seemed uncertain or confused, I would not continue with the notarization.

Nationalnotary association.org

Josenorbertoviesca@gmail.com Once I was taken to a house where the man was in bed and did not seem to talk or wake up. The family insisted he was competent and would call me when he woke up. They never called back and I later heard from the caregiver who was present that the family was taking advantage of the man. The man died soon afterward,and to my knowledge, the notarization was never performed.

Annette

A notary cannot determine if a person has the capacity to sign. I would ask if the signer has a guardian or conservator, and if not then he is able to sign his own documents. I would need to speak with the signer alone to determine 1. If he understands what he is signing 2. If he was signing of his own free act and deed. If he does not have a guardian or a conservator, understands what he is signing, and is signing of his own free act and deed, I would notarize. If not, then I would refuse.

A side note - there is mention of a credible witness in a few comments. It states he has identification. There would be no need for a credible witness. It has nothing to do with whether you are able to perform the notarization or not. A credible witness is utilized when no ID is available and it is not reasonable for the person to obtain an ID. ie a nursing home patient, or disabled person in the home setting that cannot get out to obtain an ID.

Barbara Citty

13 Jun 2017

I would ask to be alone with the signer and then ask relevant questions to determine capacity and willingness to sign. If I feel that the signer did not have capacity I would not do the notarization.

Karla

It depends for me. If the person in question can tell me themselves where I need to sign or what form they need then I will proceed. BUT if they are unable too and are assisted I will decline. Irregardless of mental capacity I go by what is written on the form in name and if the person can present me the proof of their identity and understanding of their forms.

Marilyn Nevarez

I would ask the oldest Adult, does he have a handy cap. And if he does, do you have conseververship Over his financials? I would tell both people near him that I need to ask only him a few questions to determine if he is able to answer on his own. So I can continue my services for him or not.

JimN

When doubtful I hand the document to the signer and proceed if I get an affirmative answer to three questions. Could you please identify this document? Do you understand the purpose of this document? Are you willing to sign this document? That is all the proof needed

Verne Gordon

This is a situation where I would politely ask the brother and aunt to leave the room and then engage the signer in a conversation to ask him if he knew what the the document was and if he was willing to sign it of his own free will. If he answered with a description or such of the document and that he knew what he was signing, I would go ahead with the notarization and make the appropriate entry in my journal. If for some reason, he didn't know what the document was or seemed hesitant to sign it, I would stop the notarization and make the proper notation in my journal as to what happened. I have already been in scenarios such as this with a blind signer and having the family members trying to get him to sign a power of attorney as well as a bedridden person with the father trying to have a power of attorney signed by her, The only trouble was, the woman could not speak or write and did not seem to understand my simple questions. In both cases, I had to stop the notarizations and make the proper entries in my journal. I had called the NNA hotline also to be sure. I recommended that the families of these individuals seek the help of their attorneys. Sadly, in both cases, I was not informed of the facts that one person was blind and the other was bedridden and unable to speak or understand anyone.

Arlanda

14 Jun 2017

Jenna's comment and suggest is the best practice when capacity is in question. I too would ask ‘The Individual’ if he had a General Power of Attorney filed with the courts. If so, I would request the POA document for verification and continue the notarization with the designated legal General Power of Attorney. I would advise them to print “signing on behalf of (‘The Individual’)”, conveying that they are the POA of ‘The Individual’. In my journal under ‘Additional Information’, I would notate the POA Court Case No., ‘The Individual’s State ID Information & notate that the POA signed in lieu of the individual. If not, I would decline and explain.

Christina

I would kindly explain to the family members the reason for me asking these few simple questions and having "the individual" answer them. The family may need to be educated on how this works. We may be providing a service but we also need to kindly explain things like this when necessary. We cant just excuse the family but allow them to see how helpful and trustworthy we are by giving them reasons for our doing things a certain way. We then can determine where to go from there. Sometimes when reasons are understood, cooperation is greater.

Willie J Peterson

17 Jun 2017

In Michigan I have the right to refuse a notarization.I would not notarize under the circumstances described to protect me from potential liabilities that may arise

Gerry

20 Jun 2017

If you are asking questions about the specifics of the document, at what point are you interpreting the document and thus acting as an attorney? If a court has not adjudicated him as not being competent, and he understands the generalities of the document and he is not being coerced, why would you not notarize it? People are allowed to make bad decisions, it is not our job to decide if they are making a bad decision, just to make sure who they are, that they are aware they are signing an important document and they are not coerced.

Clive White

03 Jul 2017

I would ask the adult who is present with the child, to sign as a witness to the child's signature

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