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

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

Last week we presented a real-life scenario in which Notary was asked to notarize a set of mortgage documents for a 72-year-old man, who was taking out a $300,000 loan on his home — which was completely paid off. But he expressed reservations about the need to borrow the money. However, his much younger wife insisted that it was something she wanted to do.

This raised a red flag about the possibility of undue influence, as did the presence of the loan officer, who spoke with the wife in a foreign language the Notary did not understand. When the issue of the 3-day right of rescission came up, the wife said they would not be exercising it.

What You Said
 

Most our readers who responded agreed that this situation raised warning flags about proceeding with the notarization.

Teresa Lilley said she felt the husband’s reluctance was a sign that the Notary should not proceed. “I would have refused the notarization due to the husband being unsure of even wanting to take out the loan, and also the wife being so aggressive with her husband about taking the loan out even with him being hesitant,” she said.

Verne Gordon said he would want to speak to the signer without the others present to check for possible coercion. “I would take the elderly signer aside in private and ask if he knew what he was signing and if he was under any pressure from the wife and loan agent to sign the loan document,” he said. “If he was hesitant, I would stop the notarization and contact the local authorities that he may be the victim of elder abuse.”

Craig Lawson, a Notary and former bank compliance officer, said he felt that the wife’s insistence on ignoring the rescission period and her speaking in a language the Notary didn’t understand was cause for serious concern. “If this is not a purchase money mortgage, the signers cannot neglect the rescission period by law,” he said. “I would refuse to notarize the document.”

Standards Of Notary Practice
 

Depending on the state where you are commissioned, you may have a legal duty to determine that your client is signing of their own free will. Or it may be a standard of professional practice.

In this case, the notarization took place in Washington state. Washington’s Notary laws say that an acknowledgment means the person signed the document as a “free and voluntary act” (RCW 42.44.010[4]). Since in Washington state the loan papers would have included a Deed of Trust which must be acknowledged, the 72-year-old man was required to acknowledge to the Notary that he was signing voluntarily.

One of the common tactics is to ask to speak to the signer alone. This is a judgment call for the Notary. There are circumstances in which a signer might be better off if family members or caregivers remained in the room as a support system. In this circumstance, however, the Notary asking the wife and loan officer to step out of the room is justified.

In any case, the Notary could mention to the signer that he seemed reluctant and ask him to state clearly that he was signing the documents willingly and voluntarily. If he says yes, then the notarization can proceed. If he says, no, then the Notary should stop.

Other states take different approaches:

  • Some states, such as Massachusetts and Mississippi, prohibit Notaries from completing a notarization if the individual did not sign the document voluntarily.
  • Some states, such as Oregon and Iowa, permit Notaries to refuse a notarization if they are not satisfied that the individual signed the document voluntarily.
  • Some states, such as Hawaii and Louisiana, include wording in certain acknowledgment forms that says the individual acknowledged they executed the document as his or her “free act and deed.” This means that by signing the acknowledgment certificate the Notary certifies the signature was the voluntary act of the signer.

For states that do not address the issue — including California, Texas and Florida — Notaries should follow the standards of practice contained in The Notary Public Code of Professional Responsibility. Guiding Principle III-B-2 says that a Notary shall not notarize for any person if the Notary has a reasonable belief that can be articulated that the person is being bullied, threatened, intimidated or otherwise unduly influenced into acting against their will or interest.

Whatever actions you take to determine is the man is a willing signer, you should to record the details in you journal entry. You should also complete an entry with the details of any notarization you refuse.

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

Additional Resources:

State Law Summaries

7 Comments

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Deborah T

22 Jul 2017

What to do when a senior has only a SS card and no valid ID available?

National Notary Association

24 Jul 2017

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

Carolyn

24 Jul 2017

I too would like to know the answer to a person only having a SS card as valid ID. I am in Massachusetts

National Notary Association

25 Jul 2017

Hello. In Massachusetts, a Social Security card is not an acceptable form of ID for a signer. The signer would have to be identified by a credible witness who personally knows the Notary and signer, or the signer must present another current form of ID issued by a federal or state government agency that includes a photo and signature.

Lily

24 Jul 2017

If the senior man signing the loan docs is not senile, then it is not my business as a notary to refuse the notarization just because the wife has undue influence over him. That is the case in many marriages. He is voluntarily signing the docs in return for staying in his wife's good graces, even if it leads him toward financial hardship. I would ask to speak to him in private, however. If he said he wanted to sign, then I would proceed with the signing.

Alberto Leyva sr

25 Jul 2017

In Indiana a Social Security card I not acceptable As identification

Yvonne

26 Jul 2017

It doesn't matter if the elder is senile or not or married the spouse can be young or old and still be deceitful, but if he or she seems hesitant or afraid u dont go thru and sign that is how so many elders are swindled out of there life savings and have to battle in it out in court and in most cases never get any money back. So if it looks fishy or doesn't seem right dont sign and call the police

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