Last week we posed a real-life scenario in which a Notary went to conduct a mortgage refinance signing for an elderly couple. As it turned out, the wife had serious health issues that left her hand so shaky she needed her caregiver to hold her hand steady so she could sign the documents.
While the wife seemed alert and aware of what she was doing, and was willing to sign the documents, the situation raises concerns about the validity of the signature. Is it legal? Could it be challenged?
Dozens of members of the NNA community offered their opinions about how they would handle the situation.
What You Said
"I would allow her husband to sign for her only if she requests it and remains at the signing and understands each document she signs and husband signs her name and his initials," said Notary June Wilson.
"My mother had the same issue but was able to sign by mark. The paper was placed so that she could rest her forearm on the table and she was able to make the mark without assistance. The letter 'X' was squiggly, but clearly legible," noted Carol Lynch.
"I would advise the husband that they needed a power of attorney so the husband or some agreed-upon relative can sign for her," wrote Elspeth Day.
"Considering that the population lives longer every generation, notary laws must consider and accept (if not already) that, if the individual is alert and understands the contents of the document, Notaries should be allowed to accept… that a third party helps the signer to steady his hand," wrote Carolina Pinho.
"In Texas law, there is a provision where you use a disinterested witness and I would sign the documents for her," noted Larry Rogers.
And Keith Harding pointed out that California Notaries may accept a signature by mark.
Standards Of Practice
As one of our commenters pointed out, people are living longer, and it is fairly common to encounter signers with physical impairments that may hinder their ability to sign documents. However, it is not appropriate to permit another person to steady the hand of the signatory signing the document. That could be considered coercion if the document were challenged later.
Commenters also pointed to two possible viable options, depending on your state’s laws:
- Having the signer use a mark to sign instead of their whole signature, a procedure called signature by mark.
- Having the impaired signer direct another person to sign for them, which is called signature by proxy.
Whichever option is appropriate for situations such as this, make sure to follow the specific procedures required by your state’s laws or rules.
This scenario occurred in Texas, a state that permits both options.
In Texas, people may sign documents in whatever manner they choose. That signature can include any symbol or mark that the signer chooses as long as they intend for the mark to serve as their signature. While it is not formally required, the NNA recommends that there should be two witnesses to the signature by mark in addition to the Notary.
In Florida, a signature by mark requires 2 disinterested witnesses. In addition, the Notary must print the following on the document:
- The signer’s first name at the beginning of the signature line and last name at the end of the signature line.
- The words "his (or her) mark" below the signature mark.
For signature by proxy, as one commenter noted, Texas Notaries may sign the document on behalf of the signers who are physically unable to sign or make a mark themselves as long as the signer directs them to do so. The statute is very clear that the signer must have a disability that impedes their ability to sign or make a mark. The signature by the Notary for the impaired signer must be witnessed by a disinterested party, and the Notary must identify the party. In addition, the Notary must add a prescribed notice contained in the statute under the signature line that they signed for the signer in the presence of the witness.
Florida also permits signature by proxy but requires two witnesses. However, many states do not authorize signature by proxy, including California and Illinois. And other states may allow a signature by proxy but require that a third party and not the Notary sign for the individual.
If your state’s laws or guidelines do not allow the signer to make a mark nor permit signature by proxy, you may have to suggest that the signer seek legal advice.
Michael Lewis is Managing Editor of member publications for the National Notary Association.