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What Would You Do Answers: The Case Of The Signer With Alzheimer’s

wwyd-elder-signer-resized.jpgLast week, we shared a question based on a real-life notarization where a Notary was asked to notarize the signature of an elderly man. The Notary had been friends with this signer for years and was aware he had been diagnosed with Alzheimer’s, but also knew the signer’s symptoms were sporadic and he was frequently aware and lucid for periods of time.

The Notary met the signer at an assisted living facility, and the signer was alert, coherent and communicated clearly. However, during the notarization, a social worker walked in, informed the Notary that the patient had Alzheimer’s, and asked the Notary to stop the notarization — even though the signer said he was willing to proceed.

What Our Notaries Said

Many Notaries said that if the signer appeared aware, coherent and willing that they would proceed with the notarization.

“As long as the signer is lucid and understands what is being notarized and why, I think I would notarize the papers for him or her,” said Carolyn W. Crudup. “I would explain to the social worker that they are lucid and understand what is going on, and I see no reason not to do it.”

Others said that they would defer to the medical opinion of a doctor but would not stop the notarization solely based on the social worker’s wishes.

“If it was a doctor questioning the lucidity of the patient, then I would stop, but not at the direction of a social worker,” said Linda Hargreaves. “I would ask questions of the signer to determine that he is coherent and understands what he is signing and proceed based on that.”

“I would ask the signer's permission to see the doctor’s diagnosis,” said Kathleen Gorham. “If his physician has indeed given the signer the diagnosis of Alzheimer’s, I would not proceed if he is signing any type of estate planning document, as this could be contested later because of this diagnosis.”

Naida Hamilton said she would first contact the signer’s family and doctor and ask them to be present before proceeding with the notarization. “Your friend will not be the one suing you, but his close relatives might,” she said. 

Standards Of Notary Practice For A Signer With Alzheimer’s

This is a tricky situation because it requires you to make a choice — should you honor the signer’s wishes, or follow the directions of the social worker and refuse? Ultimately, the decision to notarize rests in your hands — not the social worker’s.

Alzheimer’s symptoms are not always consistent or obvious. While you are not a medical professional, you can make a commonsense decision whether to proceed by engaging the signer in conversation and asking questions about the document.

Some states, such as Florida, have statutes prohibiting Notaries from notarizing if the signer does not appear fully competent or understand what they are signing. Other states, such as Oregon, Colorado and Pennsylvania, permit a Notary to stop a notarization if the Notary is not satisfied that the signer is competent. Even if not specified in your state’s laws, observing signs that the signer is disoriented or cannot communicate coherently should cause you to stop the notarization.

However, if the signer appears alert, responds to you in a clear and understandable manner and tells you that they want the notarization to proceed — which is the case here — then you may go ahead as planned.

Whatever you decide, it is very important that you document the reasons for your decision in your Notary journal. That way, if your decision is challenged in a lawsuit or court case later, you have detailed evidence showing that you demonstrated reasonable care in making your decision. In fact, juries and judges will often review all of a Notary’s journal entries — not just for the notarization in question — when determining if a Notary acted reasonably in a legal dispute. That's why it’s important to keep good journal entries for every notarization and not just for the challenging ones. A well-kept Notary journal demonstrates that the Notary is careful and uses good judgment as a matter of practice. A poorly kept journal is often seen as a sign that the Notary is careless and may not have followed proper procedure.

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

 

6 Comments

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Martin brandfon

20 May 2019

As an notary/attorney I might have told the social worker that the signer was my client and that our meeting was confidential.

d

20 May 2019

can't get this to go away to read the article, good job nna.

National Notary Association

28 May 2019

Hello. If you are having an issue viewing a document, please email us at social@nationalnotary.org with a description of the issue you are having and the type of browser and device you are using and we will be happy to try and assist you.

Larry Wissler

20 May 2019

On the subject of Alzheimers disease I would ask the customer a few current event questions like who is our current president, what the day and date is and his or her date of birth. That will tell me that they are cognizant of what they are having notarized.

Luis D Castillo-Munoz

22 May 2019

This article definitely helps clear concerns of whether or not to proceed with a signing. My question to you is whether or not there is a list of standard questions that must be asked of the signer to determine their level of competency and understanding? I don't think it's within the notaries role to ask the signer for permission to see a doctor's diagnosis when they are not acting as "investigators" but as notary public. Nor do they have to feel a need to call on the signers friends or relatives if the individual has passed the "competency test", if there is such a thing.

Howard W Bleiwas

06 Jun 2019

A couple of things: Although the notary should assess that the signer understands what they are signing, and the consequences thereof, it is not the notary's role to determine competency. Competency will be determined later, based on a preponderance of the evidence in most states, by a court of competent jurisdiction. If the signer understands the purpose and consequences of signing the document in question, the notary may generally proceed. If a medical professional objects, such objection must be noted, but the notary must decide whether that should prevent the signature (as the medical professional may also have vested/conflicted interests). Finally, since most people carry smartphones, it is feasible to have a video recording of signings like these, including representations made by medical professionals and the Q&A used to establish whether signer is responive and coherent.

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