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

wwyd-elder-signer-resized.jpgThe 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?

Imagine you’ve been asked to perform a notarization for an older individual. You are well-acquainted with this signer — you’ve been friends for a long time. You’re aware that he was diagnosed with Alzheimer’s in the past — but based on your previous interactions, the symptoms appear infrequently, and he has often been lucid, coherent and been able to communicate with you clearly in the past.

You go to the assisted living facility where the signer lives to perform the notarization. As you engage him in conversation, he is alert, communicating clearly and appears to understand what he is signing. However, in the middle of the conversation a third person enters the room, presenting you with an ID card that identifies her as a social worker. “I need to ask you to stop this notarization,” she says. “This person has a medical condition that affects his judgment.”

The signer says he’s willing to proceed — but the social worker is insistent that you stop at once. 

What Would You Do?

Everything you’ve observed about the signer during your meeting indicates he is willing, coherent and aware — but the social worker is adamant that the process be stopped. How would you handle this situation? Should you defer to the social worker? Proceed as the signer wishes? Or would you take a different approach?

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, where we offer the best possible answer(s) to this Notary challenge.

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

 

157 Comments

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Cindi

08 May 2019

I would proceed since the Social Worker is not the power or attorney nor legal guardian of the individual.

CHS.Debra@gmail.com

09 May 2019

I would proceed. The social worker has no legal right to stop it and the person signing is a long time friend who is coherent in that moment.

Perry

11 May 2019

I would ask the signer pertinent questions to display to the social worker that he/she is lucid, understands what they are signing and are doing so of their free will.

Marsha

13 May 2019

I would ask if there was a POA for the signer and if not, proceed.

Tee

13 May 2019

I would proceed if in my best judgment of the signer it shows that he/she is coherent and fully aware of what they are doing.

Joyce Kimball

13 May 2019

Depending on the document, I may or may not ask to put it off and have a family member (if possible) there. I would then proceed regardless of the social worker.

PATRICIA CARROLL

13 May 2019

I would ask if he has a POA. If not I would proceed on and notarize the form.

Tom

13 May 2019

It seems to me that the notary's job is to verify the identity of the signer, and not judge his or her mental capacity.

Pam Boross

13 May 2019

I would proceed, there’s no POA and nothing to show that social worker or anyone else has legal guardianship or conservatorship. In California, law states “at the time of signing” signer must be coherent and lucid. Asking additional questions may be intrusive.

A Lester

13 May 2019

I would proceed with the notary. The social worker has no legal right to stop a notarization without a proper Power of Attorney. I would definitely ask the social worker why he or she is trying to stop the notarization.

Kandee

13 May 2019

I would proceed with the notarization. I've actually had this exact situation occur; I did leave the facility at that time and checked with an Elder Care attorney whom I've worked with frequently. The attorney advised that there is such a thing as a Patient Bill of Rights, and the Social Worker was violating that Code. As a Notary, we are in the position to make the call at the time of signing if the patient is coherent and under no duress. I've also had to decline notarizing when it was apparent the signer was not cognizant.

Marcia m williams

13 May 2019

I would stoip, he has legaly been declared not capable of making the request.

Karin M. Donovan

13 May 2019

I would explain to the social worker that I am personally acquainted with the individual and his/her condition, and as a result of responses from the individual to pertinent questions, I have evaluated the individual is competent to sign the document, and I will continue the notary process.

Justine

13 May 2019

I would look for a Power of Attorney to clarify before moving forward. The social worker raised a flag for me to bring clarification and resolution to move forward.

Sherri L Johnson

13 May 2019

Based on my personal relationship with the individual and recognizing his behavior as coherent and lucid, I would proceed. The Social worker is only advisory.

Linda Hargreaves

13 May 2019

If it was a doctor questioning the lucidity of the patient, then I would stop, but not at the direction of a social worker with no legal capacity (POA). I would ask questions of the signer to determine that he is coherent and understands what he is signing and proceed based on that. If it is a legal document, whoever is being asked the implement/insure/validate the document (court, title company, etc.) would typically ask for a note from the doctor about the person's capacity.

Clem

13 May 2019

I would ask the signer if they wanted the social worker in the room as it is none of their business. My signing, my judgement.

Mary Alabi

13 May 2019

I would check to see is a POA or medical POA depending on the document. Review the document with the person and see if they can clearly understand and explain what they are requesting and signing. I would also ask their physician if the person is coherent enough to understand what they are doing. Depending on the answer I would proceed or seek professional advice on my next steps.

Deborah A. Walker

13 May 2019

I would first thank the social worker for being protective of my long time friend and his condition. I would then ask her if she or her organization had a POA on file, so we can proceed forward as my friend wishes. If no POA, I would then call a member of my friends family and explain what is going on and ask if they are aware that my friend wanted to sign the documents. If they are also aware, I would proceed forward with the signing as my friend requested. If they are not aware and social worker has no POA, I would ask for family to provide POA and schedule a time when they could make the appointment too

Angela

13 May 2019

If the Social Worker has a Power of Attorney, then I would not perform the notarization. But if the Social Worker does not have POA, then I would perform the notarization regardless.

Traci Sherman

13 May 2019

I would proceed with the notarization. The social worker really does not have any authority to tell the notary if the signer is competent or not. Also, because there are varying levels of capacity for different documents, how does the social worker know what type of capacity is required for these documents. I would not share with the social worker what documents are being presented for notarization unless the signer gave their ok. If the signer's doctor said to hold off, then that I might listen to, depending on the rationale behind it.

Fred Adler

13 May 2019

I would check with the HOME if there is a Power of Attorney on file with them and call them to ask if they are willing to come in and sign for the person with dementia. If there is none and the home does not have a formal diagnosis of dementia, I would proceed with the signer acknowledgement.

Michele

13 May 2019

I agree that the notary should proceed. I don't think it matters whether the signor has a power of attorney- executing a power of attorney does not mean the signor has given up all ability to make independent decisions.

Deborah A. Walker

13 May 2019

I would first thank the social worker for being protective of my long time friend and his condition. I would then ask her if she or her organization had a POA on file, so we can proceed forward as my friend wishes. If no POA, I would then call a member of my friends family and explain what is going on and ask if they are aware that my friend wanted to sign the documents. If they are also aware, I would proceed forward with the signing as my friend requested. If they are not aware and social worker has no POA, I would ask for family to provide POA and schedule a time when they could make the appointment too

DEBORAH A. WALKER

13 May 2019

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Philip Gallo

13 May 2019

My wife was recently diagnosed with Alzheimer's, but she is still completely coherent, if I know the person well enough to know what they are saying is factual, I would go ahead and notarize the document!

Arline Culbertson

13 May 2019

I would probably not notarize I have lived with someone with Alzheimer’s they do seem to be okay sometimes but they usually just agree with whatever is said. I think a Social Worker wouldn’t interrupt unless for the persons best interest. Maybe use creditable witnesses with affidavit to swear what that person really wants

Nancy Lomac

13 May 2019

I would calmly ask the Social Worker if they were in possession of a POA. If the Social Worker was not in possession of a POA I would just as calmly ask them to leave the room so I could speak to MY CLIENT privately and determine if they were indeed lucid and fully aware of what was to be signed. Once satisfied the client was fully aware and lucid I would proceed with the notarization.

Diana

13 May 2019

I would proceed. The social worker doesn't totally know the persons mental capacity. Alzheimer's disease has different variations in different people. One day may vary from the next. The social worker probably hasn't seen the person on a good day.

Lori Sergent

13 May 2019

Each state is different, but the general rule is to NOT notarize a document if, "you have reason to believe the signer appears to be confused, disoriented, or lacks the mental capacity to sign documents." Therefore, in this case, you should not notarize the document if the person seems to not be themselves.

lynn Perry

13 May 2019

I would proceed unless the social worker has power of attorney for the patient.

M.B. Harlow

13 May 2019

If a social worker came into a private meeting, that tells me a lot more is going on with this individual (the signor) than I am aware of. I may decline until I know more.

Michael Metzger

13 May 2019

As a notary, I am responsible for making my own determinations to the signer’s capacity. Unless a qualified medical professional or judge has determined that the person is incapacitated, I would continue with the signing. I don’t think a social worker has the ability to make those kinds of assessments and is only offering opinion.

Marilyn Torres

13 May 2019

I would verify if there is a POA to witness the signing. If not I will ask the signer pertinent questions that will further confirm that the signer is coherent and able to sign.

Patti Sims

13 May 2019

I would proceed. The social worker is not a medical doctor and not able to make a medical diagnosis. Unless he/she is the legal guardian or power of attorney, I would notorize the document.

Katy

13 May 2019

It was my understanding that a diagnosis of Alzheimer's meant that the individual could no longer be considered legally competent, so I would request a Power of Attorney sign the document. I don't believe it's the role of the Notary to be able to make the judgement of competency, or that the Notary should bear the responsibility for making that call.

Teri Rauhut

13 May 2019

I would proceed with notarizing. I believe it is the notary's job to verify signatures /identities, not make decisions based on one's state of mind unless there is clearly an issue.

Solange Bertet

13 May 2019

What is the correct way to proceed? This is very challenging.

Michael McFarland

13 May 2019

I would continue with the signing. As previously noted, the social worker does not have POA and does not have the authority to require me to stop the notarization. If, on the other hand, they do produce a properly executed Power of Attorney giving them the authority to make financial decisions for the signer, then I may consider stopping.

Carmen Nieves

13 May 2019

It depends how advance the illness is but I will always check with the doctors first and if I can't get information from the doctors I will call a family member to find out if there is a POA. Alzheimer is an unpredictable illness the person can be lucid one mnt and not the next. . In this case wouldn't do it

Sharon Gorry

13 May 2019

If I know this person personally, I am likely also aware of the circumstances leading up to the need for the notarization. Therefore, I would ask the Social Worker his or her interest or concerns regarding the transaction, ask him/her to leave and proceed as my "friend", the principal wishes.

Phyllis Denison

13 May 2019

I would proceed with the notarization based on my observations and the signer's responses to my questions. I have refused to proceed with a resident of a VA home who was almost comatose in spite of the wife' pleading. I recently refused to notarize a Durable Power of Attorney as the person named as POA did not understand the documents or the 2 different Notarial certificates she had received from Office Max! The grandfather giving her the POA at 94 was completely coherent but she was not!

S. M. Westbrook

13 May 2019

I would notify the facility I was coming to complete the signing.I would ask if there is a POA. I would request a witness known to both myself and the signer and proceed. The social worker would have to explain their reason and their authority.

John Duffy

13 May 2019

This actually happened. They threatened to call the police by saying I was trespassing. The nurse and social worker claimed they were going to call abhor protective services. I said I was as well. They went so far as to pull the patients medical records and purport to show me a doctors letter saying he was not able to sign. There was no court order. They clearly violated HIPPA. All this happened in the presence of the signed as well as the relative that hired us. I chose to remove myself from the confrontation and I called neighborhood legal services and told them I believed there was a facility treating patients as incompetent by there own rules and that staff was also violating HIPPA rights and done one needed to educate staff at this facility. I told the clients that I would return after there staff conduct was addressed. I also called the administrator of the facility to tell them what had happened. No follow up appointment was ever scheduled with me.

Judy Dickson

13 May 2019

Because of my own personal history with the signer, and the fact that he/she appears lucid, alert and aware of what is being signed, I might ask a couple of questions about the document itself, but would proceed with the notarization.

Susan Moulton

13 May 2019

I would ask the Social Worker if there has been a Power of Attorney executed. If so, you would need to contact that person assigned as POA to advise of the situation, If not, she has no authority to stop the Notary.

Gregory Fischer

13 May 2019

It raises too many legal hurdles for the Notary. Not worth the potential liabilities.

Carolyn Stanley

13 May 2019

Unless the individual has been declared legally incompetent (through a court of law) I would proceed with the notarization.

Andrew Stern

13 May 2019

Not sure what I'd do. I was on the BAD end of a real estate transaction (not as the notary) where a person with Alzheimer's purchased my home. I was aware of his condition but was advised by his daughter and my agent that he was fine. The notary willingly notarized. As it was a cash deal with no conditions I could not refuse or I'd risk committing discrimination based on his health condition. 60 days later the persons family claimed the agreement was invalid due to his condition and then it took months for everything to get through the legal system. There was a settlement and I received a small amount of money for my troubles. Tough situation for everyone involved.

Stephen E Swetz

13 May 2019

You've made the question too easy. The better question would be the same, but not knowing the signer at all...

Carlos Robles

13 May 2019

I would proceed due to the fact that the social worker doesnt have the power to interfere with a coherent person's wishes.

Ilene B

13 May 2019

If there is no POA then I would proceed. A family member can not be contacted unless the client has signed a "Release of Information" to speak with that family member, otherwise it becomes a violation of HIPPA.

ALAN W WALDO

13 May 2019

When I know that I am going to be doing or attempting to do a notarization with someone like this, I take someone with me that testify to the event should it become needed. As to the Social Worker, I would be as cordial to them as possible but assure them that I know what I'm doing. A Social Worker is there to look out for the best interests of the patient so I wouldn't just "push them to the side". I would have no problem asking them to sit in on the process to observe what I do unless they became disruptive then I'd have to ask them to leave.

Pat walsh

13 May 2019

I would call the NNA and see what the Notary’s support staff recommends.

Steven Day

13 May 2019

I would proceed. A social worker isn't necessarily a power of attorney. A family that can prove power of attorney could possibly stop the notary act.

Kathy Day

13 May 2019

How would this be different than a third party telling you to do the notary when it’s clear to you that the signer isn’t competent? I’d do this notary and make a note in my journal that the social worker offered comments contrary to my observations. The social worker has no standing.

Gail Tate

13 May 2019

If the individual is clear minded one minute and known not to be clear-minded the next, and has a history any type of history Dementia, I would not notarize the document. Common sense would speak for itself in this situation, and I would not care what a family member said, I personally would not notarize it.

Stacie

13 May 2019

I would ask if there is a legal POA available that is authorized to speak on the person's behalf and/or ask to speak to the doctor to confirm if there is a POA to authenticate the person's ability to make their own decisions.

MARIA MITCHELL

13 May 2019

I would ask the social worker if there is documentation regarding the individual's competency. Those with Alzheimer's and dementia do have lucid moments but are not competent overall.

The Busy Bee

13 May 2019

Stop, listen, verify. Even though the notary may have past knowledge of the signer, they still have a duty to ensure reasonable competency at the time of the signing and that there are no legal restrictions that would invalidate the signing. The social worker should be asked for their awareness of any such restriction or under what legal authority they were making their request to stop. The absence of compelling evidence, places the judgement of the notary back in play. I have known people to been coherent and seemingly of sound mind and body, however, there was a legal order that appointed a conservator over their legal dealings. When there are situations that give me pause, one of the final questions I ask is, "Are there any legal restrictions that prevent you from participating in this signing? "

Hazel Marston

13 May 2019

I would definitely defer to the Social Worker. End of story.

Ginny Beard

13 May 2019

I was in the room when a notary came to notarize an order for care for my aunt. My aunt was coherent and aware that the document was to assign power over her care. In this case, a social worker came into the room after my aunt had signed. The notary had been very nice, establishing my aunt’s mood and knowledge of the document without pushing or influencing. The social work demanded she not notarize the document and even snatched the seal. The notary calmly asked for proof of power of attorney or other assignment of caregiver control from the social worker. When she learned there was none, she picked up the phone receiver and held out her hand to the social worker. Since operators were informed that sometimes patients could not communicate, the operator sent security to the room and notified next of kin. When her seal was returned the notary asked my aunt if she wished to continue and receiving a ‘yes’ completed the notarization. She managed to do this without confrontation with the social worker or upsetting my aunt, though I’m sure the social worker cannot say the same. We were thanked for our time and the notary left.

Akbar Soroush

13 May 2019

Don’t get yourself into a situation where you could be caught up in a lawsuit if a bit of careful practice can prevent it. In situations like this, document details in a written record. If you use a journal, document any positive or negative concerns about the signer’s condition in your journal entry. That should help reduce the risk of possible legal proceedings for negligence. Then you may notarize his or her signature. A social worker doesn't have right to prevent a notarization procedure.

Lillian Eagan

13 May 2019

I would defer to the company that sent me out to get the documents signed. It is not my job (by definition) to take a stand here. It is up to the family or the company involved to sort the situation out. I would have to stand down until it is worked out.

Linda Millstone

13 May 2019

I would explain to the social worker that I have determined that the signer is currently lucid, coherent and aware of what the document is and what they are signing. I would then ask my friend/client if they would mind proving this to the social worker and whether they would mind having the social worker stay to observe. Regardless of whether my friend/client decides to "prove" their current capacity to the social worker or not, I would continue with the notarization as I have been satisfied that my friend/client is competent to proceed.

Jennifer Ravenscroft

13 May 2019

First I would need to determine it the signer has been make a dependent of the court/state and evaluate the Social Worker's authority based on that information. I would also need to know if there is a power of attorney for the signer if he/she is not a dependent of the court/state. If the Social Worker has no Authority to stop the signer and there is no POA, I would proceeded with the notarization.

Ramon Rodriguez

13 May 2019

I am neither a medical doctor, nor a psychologist, my duty is to perform the notary service when asked, as long as it is a legal document, the client appears to be in possession of all his senses, and has presented all necessary documentation to prove his identity, I would provide the notarization.

Beth Stoorza

13 May 2019

Unless the social worker has legal authority to make decisions on behalf of the signer (Power of Attorney), then I would go ahead. Having Alzheimer’s doesn’t deem one unable to make decisions for himself. If lucid, I would proceed.

Roxana Brooks

13 May 2019

This happens a lot in the skilled nursing facility industry. To notarize negligently attaches liability. I would want to hear what the patient’s Dr says re: state of mind. I could not ethically live with myself knowing I did not do the right thing.

AILIN GARCIA

13 May 2019

So where do I read the correct answer? I would proceed but do not want to encourage or have a conflict with any hospital staff.

PL Sti

13 May 2019

I have been the POA for an elderly parent, and my mother-in-law had Alzheimer's. Family members need to be kept in the loop on these decisions because they have to deal with the consequences. I would not proceed with the notarization without the POA present. If this is a long-time friend as described in the scenario, chances are I know the family member or POA. Someone that my mom trusted (whom I did not trust) tried to get her to sign something without me present and I was so grateful that the assisted living place where my mom lived intervened.

Julie

13 May 2019

For me it would depend on who has "legal" authority. If the person's guardian is legally responsible then I would go with the social worker. If not I would allow the person to sign. For my protection and further corroborating evidence, could I record the person on my phone? With their consent of course. Because all you are really notarizing is the fact that this person, whom you know, is signing the paperwork. We are not verifying that it is a good document or legal?

Stewart Jones

13 May 2019

If possible I would ask his or her doctor of their state of mind.

William Frey

13 May 2019

I would question the S/W as to her capacity to speak for the client. IF she were assigned by a doctor, there is a diagnosis she is operating under. Considering Client is in a facility I would be very cautious.... I deal with various elder care situations and will often complete the business so not to agitate the client, then research... Same as if you suspect a fraud is occurring... shredder works well all the time.

Patricia Magno

13 May 2019

I would ask for another witness to be present, question the signer in front of the witness and if the patient is coherent, continue with the notarization.

Jeanette H

13 May 2019

As a notary and a daughter of someone who passed away after many years suffering from Alzheimer's, I would hope that a notary would not proceed. My father would appear very rational to everyone else, even people that had known him for over 40 years. I was the only one to recognize that something was wrong. People with this disease learn how to compensate when in fact they don't understand what you are speaking about. Appearances are very deceiving. Even with or without a POA, don't do it. Walk away.

Richard

13 May 2019

I work in a hospital setting and have been involved with patients who have dementia. In just moving a patient to a nursing home, if that patient shows times of being coherent then the hospital must have the consent of the patient just to move them. The example is of a patient known by the notary who displays that they are completely aware. The patient would need to be declared mentally incompetent by a medical professional. A diagnosis of Alzheimer's is not a declaration of mental incompetence. I would read the entire document and if, based on my knowledge of the individual, felt that the information in the document was reasonable and the individual was coherent and aware, then I would notarize the document.

Linda

13 May 2019

This is tough. Both my parents have Alzheimer's and I know how clear and normal they can appear one moment and totally of it the next. My parents can answer a doctors questions about what year is it, what day is it, do you know where you are, etc. and not know where they are 5 minutes later and the Doctor thinks they are doing good when they are not. My Mom's own attorney didn't know she was out of mind and proceeded with her request to pull out property from a Trust we had put it in previously! My point is, with Alzheimer's/dementia folks are normal one minutes and looney the next. Not until you are around for periods of time can you judge their alertness and degree of the illness. My Mom bought a new car 2 different times, as we took her keys from her and she "needed a car". Both salesman thought she was "normal." So my advise is you can't judge a book by it's cover. :)

Kevin

13 May 2019

Everyone in the comments above are mentioning a POA. A POA does not supersede the individual that the POA is drawn for. If the individual wants to sign for himself, is coherent, and is aware of what they are signing, then even if someone does have POA they have no right to stop the individual from signing. The social worker, of course, is supposed to have the best interest of the patient in mind, however they have no legal authority in stopping a patient from signing a document unless that patient has been declared incompetent.

Lisa

13 May 2019

I would ask the Social Worker if they are designated Power of Attorney. If not, since it is a known person and I can tell he/she is lucid, I'd proceed with the Notarization.

Priya S

13 May 2019

I would 1st question the social worker if he/she has a POA. Knowing the condition of the signer, I would proactively check with the doctor if the patient is in all good condition. All that matters is for the signer to be aware and coherent at the time and day of performing the notary and I'll proceed with the notarization unless there's an existence of a POA from the social worker.

Mike J.

13 May 2019

There are several factors to be considered. The customer is “known to you,” so their identification and their ability to understand what they are signing is all that is legally required to complete this notarization. The Social Worker can not demand anything of the notary. In the presence of a client that can express a reasonable understanding of what they are signing is the standard to which notaries are held. It is reasonable to ask the Social Worker why they are requesting to stop a notarization. The Social Worker may present a valid POA, which would possibly preclude a notarization, but ALSO, why was the customer presented with legal document that did not include the POA? This could be a case of attempted fraud that would be reportable to the authorities & the POA! A notary does NOT judge competence, we asses their ability to understand what they are signing. No single medical diagnosis would preclude anyone from competency, as that is a matter of law, not medicine. Notarizations in hospitals & life care facilities don’t require any assessment of understanding beyond what any client would need to express to me. “Would you explain to me what we are signing today?,” I ask of everyone and that is usually enough to determine understanding. Ay least in my state, there is no requirement to determine the presence of an existing POA on anyone that is not disclosed. Notaries are held only to standard of evaluating the customer’s understanding of what they are signing. Any legal matters like POAs, declarations of mandatory psychiatric confinement, and competency issues are matters of law and should be directly handled by an attorney prior to notarization by anyone. My bottom line for the case presented? If that individual is known to me, properly identified, expresses understanding of the document they are signing and nothing legally is presented otherwise, I would confidently proceed with that notarization.

Kimberly Crouse

13 May 2019

In this scenario I would likely ask the social worker to provide me with some sort of legal documentation for their request (guardianship, conservatorship or an effective Power of Attorney) or to leave the room so I can determine if I can confidently perform the task at hand. If I am there to perform an Acknowledgement I simply need to confirm identity and have the signer communicate his/her wish that I acknowledge his/her execution of the document. However if I am there to perform a jurat, I prefer to engage the signer before asking them to swear and or affirm the contents of the document. If the signer is coherent and can communicate to me they understand what and why they are signing the document I would perform the notarization. If they cannot do so, I would politely refuse the notarization. In either situation the social worker comments/suggestion would be noted in my journal.

Jeanella Hawk

13 May 2019

I would continue with the notarization since I know the person. The social worker is out of line telling about his condition as a breach of privacy.

Della

13 May 2019

If the Notary is familiar with the signer and believes the signer is capable at the time of signing than I say go for it. The social worker is more than liking not personally known to the signer where they can make the decision for him.

Traci Cummins

13 May 2019

I would have to refer the social worker to the Administration and discuss The lucidity of the resident. I would then go and notarized the document.

Gerald Selby

13 May 2019

The social worker has no authority in this matter. I would proceed with the notarization provided the signer is aware of what he/she is signing & demonstrates capacity.

Carolyn W Crudup

13 May 2019

As long as the signer is lucid and understand what is being notarized and why I think I would notarize the papers for him or her. 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.

Natalee

13 May 2019

I would take the social workers concerns under advisement. But they have no rights due to the “Patient Bill of Rights”. I would ask the doctor or head of nursing (if they are in a facility of their professional opinion of their mental capacity and status of a POA. At which time if there was a POA I would reach out to them. If there is no POA, and the facility thought that their mental capacity was good enough then I would go back into the client and make sure that they understood what they were signing by asking questions to make sure that they had full comprehension of the document it’s contents and any consequences, if any. I would have no problem performing those questions in front of the social worker and informing the social worker of the facilities opinion of the clients mental status. Then I would proceed with notarizing. Prior to signing, I would ask the social worker to please leave the room. Immediately afterwards, I would document the entire situation with names of all I talked to in order to avoid any possible legal ramifications or lawsuits later on.

Kathleen Gorham

13 May 2019

Although a social worker does not have a legal right to determine the signer's health, a physician does and now I have been informed. So, I would ask the signer for permission to see the doctor's diagnosis. If his physician has indeed given the signer the diagnosis of Alzheimer's, I would not proceed with the signer if he is signing any type of estate planning document as this could be contested later because of the diagnosis.

Natalee

13 May 2019

I would take the social workers concerns under advisement. But they have no rights due to the “Patient Bill of Rights”. I would ask the doctor or head of nursing (if they are in a facility of their professional opinion of their mental capacity and status of a POA. At which time if there was a POA I would reach out to them. If there is no POA, and the facility thought that their mental capacity was good enough then I would go back into the client and make sure that they understood what they were signing by asking questions to make sure that they had full comprehension of the document it’s contents and any consequences, if any. I would have no problem performing those questions in front of the social worker and informing the social worker of the facilities opinion of the clients mental status. Then I would proceed with notarizing. Prior to signing, I would ask the social worker to please leave the room. Immediately afterwards, I would document the entire situation with names of all I talked to in order to avoid any possible legal ramifications or lawsuits later on.

LARRY ROGERS

13 May 2019

I would do what my client requested in this case. I have had nurses try to get involved and I continued with my notary work.

Ronald Scott

13 May 2019

State of Washington, My state has a guide that was released based on statute and court law. 5 main reasons to find someone not competent are, Duress, Language, intoxicated, mentally infirm, underage. The only way this scenerio would make me pause in the signing is if that social worker was instead the attending Psychiatric doctor and they felt it so important to stop my action that they broke HIPAA just to warn me. Now if that social worker came up to tell me she heard the person being threatened or coerced into getting a POA, that's a different story.

ILDA

13 May 2019

I would proceed.

David Dolve

13 May 2019

California code 1189 does not provide for Notaries to evaluate a signers awareness. It does require signers to acknowledge that they are the person who signed or is signing. Also, you cannot withhold a notary on a person who asks. I would say this is a terrible place to be, from both ends to a law suit. One from the signer's estate or possible action from the facility. Life with vague laws!

ILDA de Pau

13 May 2019

Proceed with notarization

Brian Ford

13 May 2019

Check the state laws and consult an attorney before completing the notarization.

Delores Owens

13 May 2019

Since the social worker has no power of attorney over the client, I would ask a few more questions the client should know and if answered properly, I would proceed.

Dan

13 May 2019

I would evaluate the competency of the signer. I would explain who I am and if he knows what he is about to sign. If during the discussion I determined that he was not coherent I would not proceed with the signing. If he appeared to know who he is and what he is about to do I would proceed. Virginia law gives the Notary the judgement to discern the competency of the signer not a social worker or nurse or orderly.

Susan Golomb

13 May 2019

If this document signing was assigned by a signing agency, I would contact them for a decision as to whether to proceed. If I was contacted because I was a friend of the signer, no agency involved, I defer would my own judgement based on personal knowledge of the individual, and continue with the notarization as my responsibility is to determine whether the signer is cognizant at the time of signing, not to defer to an outsider.

H. E. NWANKWO

13 May 2019

From your preamble relative to knowledge of the signer by the notary, it makes sense to ignore the social worker, unless she /he provides evidence she has power of attorney over the signer. Yes haven a medical condition, if such is the case must be delivered in writing from a trusted verifiable source and such condition must be related to ability to reason properly in protecting personal interest. The social worker may be right but the interest to be protected is that of the signer not his/hers. At this point it appears that , without pa power of attorney, it is the interest of the social worker that is being presented by her/him. Perception is not enough reason for the social worker to block the personal interest of the signer. I once had a situation where a person with power of attorney over a mentally unstable patient appeared before me requesting i endorse a transaction in the patient has agreed to pay her( caretakers own) medical bill. She presented an affidavit to be signed by her as both the caregiver and beneficiary. I told her it is in violation because her job is to protect the interest of her patient not exploit her given powers. I asked he if your patient tells you to pay medical bill of a relative that is normal and able to fend for self, will you take money from the sick to pay for the able and healthy, she cursed me out and left in anger. I said thank you too.

DL HAMILTON

13 May 2019

I AGREE WITH CINDI. I WOULD PROCEED SINCE THE SOCIAL WORKER DOES NOT HAVE POWER OF ATTORNEY.

Judith Rogers

13 May 2019

After reading several comments I've decided that I would make a minimum of two trips to the person with Alzheimer's I would ask certain questions on the first visit go back the second time ask the same questions if the answers were the same I would proceed with the signing

Jeff S.

13 May 2019

If a mental health professional says an individual is incompetent to sign I would respect their opinion and would not proceed.

Naida Hamilton

13 May 2019

I would not proceed until I had spoken to his closest relatives and the doctor in charge.. I would also request that they be present upon his signing. Your friend will not be the one suing you, but his close relatives might.

Judith Rogers

13 May 2019

After reading several comments I've decided that I would make a minimum of two trips to the person with Alzheimer's I would ask certain questions on the first visit go back the second time ask the same questions if the answers were the same I would proceed with the signing

Nancy Cross

13 May 2019

I would first thank the social worker for being proactive and wanting to make sure my friend was taken care of. I would then ask her if she or her organization had a POA on file, so we can proceed forward as my friend wishes. If no POA, I would then call the family, explain what is going on and ask if they are aware of what was going on. If they are also aware, I would then ask to speak privately with the social worker to determine why he/she was so concerned about this and let her/him know that my friend was having a good day and seemed sure about what my friend wanted to do. I would then tell the social worker that I had talked with my friend for some time today and he/she was clear and lucid and that I intended to talk with my friend some more before we proceeded just to make sure of his/her mental state. I would also ask the social worker if my friend had indicated a desire not to go forward with the signing.

Barbara Aikey

13 May 2019

I would not notarize. I would have declined the appointment in the 1st place since I knew he had Alzheimers. If he were a strange and I was caught in the situation, I would decline. I am not a doctor and not able to judge his ability to make a decision based on a few questions. Risk of liability is to high.

Evelyln

13 May 2019

As we have all read many times in this newsletter, Notaries are not attorneys, doctors and etc. We should not take a legal or medical stand in this situation. If the nurse does not present a power of attorney and the patient is coherent with identification or is personally known, his/her signature is all that is being authorized by the Notary. Again, as we have learned many a time through this newsletter, we do not notarize content, we notarize a legal signature.

Helen Wardale

13 May 2019

Something similar happened to me once. An out of town family member hired me to meet with them and their resident aunt at an Assisted Living facility. Something seemed off and I made the point to go early to speak with an Administrator. Sure enough, the resident had been declared mentally incapacitated by her physician and wasn’t qualified to sign any legal documents. In this case, perhaps the social worker is aware of something in the patient file. I would investigate with the facility administrator before proceeding.

Roger Eugene Hittle

13 May 2019

If the signer has NOT been judged as unable to take care of his own affiers then the law says that he can sign he still has his right

Harold Nichols

13 May 2019

Based on the individual being coherent with me I would honor his request. I am not aware that a social worker has the legal status to over rule his will.

Mike H

13 May 2019

Unless this third party has power of attorney or a notice from a court stating this person is unable to make decisions for themselves then I would probably proceed

Scott A Eisenhart

13 May 2019

I would have to defer to the health care professionals regarding the mental capability of the signer. Professionals include the MD, the RN and the Social Worker. I might ask his/her family members for a second opinion, but in any case, I would defer to the health care professionals and would not notarize, regardless of his/her mental capabilities at the moment. (I am a new Georgia notary.)

Preston

13 May 2019

Being a Notary is a far cry from a medical expert, any indication of a signers condition regarding signing a notarized document all caution must be taken. I personally was in that position with a little difference circumstances and flatly turned it down and advised signer to get legal advise prior to notarization.

Loreta Gutierrez Alfonso

13 May 2019

Not worth the risk, I would not notarize knowing there is a diagnosis of Alzheimer. Even iff the signer is lucid at the time, who's to say he'll remember signing the POA. If he says he doesn't remember (because he has Alzheimer), the family could also complain putting the notary in liability. The family could argue, you personally knew he has Alzheimer and you notarized!

Rhonda Marie Armstrong

13 May 2019

I would proceed with the signing as the social worker has no power of attorney, She has no say in the matter as long as the person is coherent then the act is legal.

Irma C Pfeffer

13 May 2019

She would have to have a copy of a durable power of attorney the show that she has any authority even if he does sound sound are not sound fact is he has Parkinson's and it could be used against you legally speaking without a durable power of attorney you can't Grant authority to that person just because they had an ID I would not permit it to happened

Maria

13 May 2019

I agree to continue the conversation if he seems alert and can maintain a steady conversation. If the social worker didn't have an legal rights (power of attorney) I would listen to the patient/client and not the social worker.

Linda Frechin

13 May 2019

I have been in this situation. Sometimes a person (my own mother) with Alzheimer's can go in and out of cognizant function. They may, at times, seem coherent and alert and tell totally believable stories, but stories that are far from the truth. Proceed carefully to assess their RELEVANT mental disposition by making time and space inquiries. If they appear to be in the present, knowledgable, and comfortable, I would proceed with the signing making detailed notes in my journal. If the person seems to be in an agitated state at the time (i.e., sundowner's syndrome) you may suggest returning to reassess the situation at another time.

daisymeg29@yahoo.com

13 May 2019

I would ask who had prepared the legal document and contact them. If the person who prepared the document verified that the person could sign - not a POA, then I would proceed to verify their identity. In California personal knowledge is not allowed to verify their identity. If the signer had ID and told me they understood the document they were signing, I would proceed. I would also ask to speak to the signor's doctor and any family that was there. I would document the social worker's protest and their identity in the book and have them sign in the notes section.

Linda Frechin

13 May 2019

I agree with Kevin as regards the POA. POA comes into effect only if the person with Alzheimer's is incompetent. In that case, the person holding Power to Act as their Attorney would be doing the decisions, paperwork, signing, etc., not the Alzheimer's patient.

Aarono

13 May 2019

I would not proceed. While the gentleman may be lucid at this moment, he may not even remember meeting with you an hour later. The social worker may have seen him in varying states of lucidity. When dealing with an Alzheimers diagnosis and a family member is absolutely insisting I proceed, I offer to return when they have a letter from the Doctor treating the Alzheimers simply stating the patient is competent to consummate a legal transaction. I would take this approach because I would rather have a person angry with me for not proceeding, than assisting an Alzheimers patient do what he would not ordinarily have done without that condition that has a devastating affect on mental capacity.

Catherine M Betts

13 May 2019

I would proceed. But one thing more I would do, is note in my journal what took place get the name of the social worker trying to stop me without the proper authority and how I explained to her why I could not stop. The client was know to me and was aware of what they were signing. In your journal, make lots of notes.

phillip wiley

13 May 2019

I would proceed as being diagnosed with dementia is no being ruled incompetent

Nancy

13 May 2019

I would stop, tell my friend I would be back later and proceed. If I didn't know him, I would defer to the social worker.

Ron Castaneda

13 May 2019

I would thank the social worker for her concern but my friend overrides her wishes after verifying this is what he wants. Doesn't matter if it's a social worker or another concerned individual. If they don't have legal authority over him, I would continue.

Marsha G

13 May 2019

As an elder law attorney in California, our firm sees documents that have been notarized for persons with dementia all the time. The senior usually does not remember signing the document and the document is usually a deed or a power of attorney giving some one else authority to gain access to the senior's bank accounts, to change deeds and to even sell real property. The poa then takes the senior's money, and the senior has no money to pay for their room and board in the facility. In many assisted living facilities they actually have a social worker on staff who is privy to such things as doctors orders and family issues. If the social worker for the facility is asking you to not go forward with the notarization, it is likely because a doctor has declared the client lacks the capacity to execute legal documents. If you still want to perform the notarization contact the local Ombudsman office to meet you at the facility. They are trained to be advocates for resident's rights and are also able to access the client's medical records at their facility. Finally, if you still think you should do the notarization, you might want to contact your local legal aid that likely provides free legal services to seniors. They can send an attorney to the facility and do their own assessment as to whether the client has capacity. You are correct than notaries are not required to ascertain the mental capacity of the client but then again, if you don't know the client, how do you know if what they tell you is actually true? Many attorneys, when faced with this exact scenario ask for a letter from the client's doctor stating they have the ability to sign a legal document. We may be taught to say YES to notarizations but if something does not feel right then come back another day with the Ombudsman or another notary to see if the client knows what he/she is signing. Notaries are actually the first tier is preventing elder financial abuse even if you are not taught that in your class.

Margaret Drayden

13 May 2019

First, I would find out if there was a Power of Attorney. If not, I would look to see what the document was my friend and client wanted notarized. The bar for the requisite mental competency to enter into contracts is higher than that to sign a will. The Arizona Supreme Court described a 3-part test to determine if a person has the capacity to sign a will: 1. the ability to know the nature and extent of one’s property, 2. the ability to know the natural objects of one’s bounty, and 3.the ability to understand the nature of the testamentary act. So, if a person is lucid at the time of signing his will and knows what he possesses, who he wants to give his possessions to, and that the will is the means by which he will distribute his assets, he's met the test. This varies significantly from the capacity necessary to transact a sale of real property. The Massachusetts Appellate Court found that more was required than lucidity at the time of signing contractual documents, including an understanding of the nature and quality of the transaction as well as the consequences and significance of the transaction. In this particular case, a 90-year-old woman with a brain disease entered into a contract to sell her home for half of its market value. The court reversed the sale. So simply being lucid the day someone signs a contract and understands they are selling their home isn't enough. They must also understand the ramifications of this contract. So, the question becomes: At this moment in time, is my friend not only alert and understands he's signing a contract, but does he understand the outcome(s) of such a contract? Therefore, I would look at the documents and see if they appeared to be documents which would likely fall under the "will" level of capacity and, if there was no POA, and I felt my friend/client was alert and competent at that time, I'd go ahead and notarize the document. However, if it appeared to be a document of a contractual nature, I would ask my friend to wait to sign it until he had an opportunity to have his attorney review the document, or, if he said his attorney had drawn up the document, I would speak with the attorney to verify that fact. Lastly, I'd keep a complete record of what transpired and the reasons for my decision.

Angel

13 May 2019

I would stop, request information of the person having POA over the signer, then proceed accordingly if no POA. While the social worker has no legal or other authority over the patient, it appears that she was simply providing helpful information to alert the notary of the signer’s possible medical condition.

Angel

13 May 2019

I would stop, request information of the person having POA over the signer, then proceed accordingly if no POA. While the social worker has no legal or other authority over the patient, it appears that she was simply providing helpful information to alert the notary of the signer’s possible medical condition.

Lisa

13 May 2019

I would stop, because that same social worker could be a witness for the family, if anything went wrong, the social worker could testify and state, the notary was informed the patient has a condition and document would be irrelevant.

Theresa Shannon

13 May 2019

If the document is a Power of Attorney for Healthcare or Finances in the State of Nevada it is required for a letter from the person’s Doctor to be attached stating that they are capable to sign if they are residing in a hospital, assisted living facility and or a group home. If a person shows any sign of confusion or lack of information it is always best to err on the side of discretion and suggest they contact an attorney.

Raymond M. Cruz

13 May 2019

I would stop the signing, ask the worker for ID, ask the relationship to the signer, ask what the basis of the objection is, ask whether the signer has a disability and the nature of the disability and, if it's cognitive, ask whether there is a POA.

Afi Phoebe

13 May 2019

My recent experience was for signer who was born with Down Syndrome and also has Alzheimer's. Her sibling has sole home care of her but in order to access certain social service benefits for her a notarization from the signer was required. I had to attach a certificate of a Signature by Mark with two witnesses establishing a full Power of Attorney. The sibling already had court-appointed guardianship which had allowed. the step two POA. However in the case presented, I suggest that Guardianship, if possible, be obtained which can make it easier for other legal matters in behalf of the signer, to be fulfilled as needed provided there is no coercion and a clear mindset is determined at the time too.

Howard W Bleiwas

14 May 2019

Assuming the social worker is part of the (medical) care team, their assessment carries a significant amount of weight, and should not be summarily ignored. While a notary should always make a reasonable, albeit cursory, assessment of the signer's comprehension and competence, the notary is neither trained nor qualified to make a conclusive determination as to legal competence. If the document, or notary, were challenged in a hearing, the social worker's assessment of signer competence could be admitted as expert testimony. Moreover, a statement by any member of the signer's care team (again, assuming that the SW is part of the care team) could be interpreted as reasonable cause to refuse/discontinue the signing/notarial act. Remember, reasonable cause is usually defined in law and commerce as 'cause with a predicate reason', rather than simply 'justification'. Since the notary has an existing relationship with the signer, there is a potential that the notary is more familiar with the signer's typical behavior (although, not the behaviors of Alzheimer's patients). At the very least, the notary should record the objection of the S/W, along with their own notes on behaviors indicating competence, in their journal or notary record. Finally, I strongly believe that any notarial act with the potential for a competence challenge should be memorialized in a video recording, to demonstrate that proper procedure was followed and no undue pressure brought. With virtually every smartphone capable of video recording, the equipment is readily available. Anyway, that's my read on it. I'm really careful with hospital/hospice/LTC signings.

Howard W Bleiwas

14 May 2019

Actually, I wanted to address some things I saw in the posts, which I believe to be popular mis-perceptions: 1) The 'client' of a notary/NSA is not the signer or any party to the document; as notaries are 'public officers', they are working on behalf of state government when executing notary acts. 2. A social work license in most, if not all, states is a licensure as a mental health care practitioner. 3. Once a care team member has called into question the competence of the signer, the notary has a significant burden to overcome to maintain the validity of the notary act. 4. HIPAA does not prevent a care provider from protecting a patient's interests ("they are not competent to sign"); rather, HIPAA prevents the unauthorized release of medical records. (Actually, most of HIPAA is to standardize transactions, not provide for privacy).

paulette@legalshieldassociate.com

14 May 2019

These comments are all well and good, but they are simply member opinions. I'd like an official answer from NOA as well. Reading all these comments from other notaries is interesting, but really a time-waster.

Peggy

14 May 2019

Under the circumstances you described - Proceed. No one has authority over the Notary unless they have a Power of Attorney. Please let us know if that is not fact. Thanks

Sydney

14 May 2019

I would defer to the social worker

Susie Slack

14 May 2019

Doing mainly Estate Planning, I have had much experience with this. I have certain questions I will routinely ask and observe how the client answers and based on that I make my determination whether to proceed or not.

sidika kilic

14 May 2019

I would ask for a doctor's report to the fact that the signer is coherent to sign document. In Europe that is how it is done for everyone above 65 years old a doctor's report from a licensed doctor is required and it is valid only on the same day the signer will sign. The doctor gives them a test to determine usually a psychiatrist.

Julie Hoskins

14 May 2019

I would let the social worker know that I am aware of the person's condition, and that I have known him for along time. If he appears to be fine, I would ask him some questions in front of the social worker to confirm he is aware of what he is signing. If he appears to be confused in any way I would not proceed. If he was able to answer all of my questions I would proceed. I would also ask him who would be the person he would have be his POA and suggest that he get the POA in place in case he needs it. Especially since the social worker is so adamant about his condition. I may wait until he gets the POA in place if he shows any sign of confusion.

Jennifer Gregg

14 May 2019

As a Michigan notary, I not only have to be certain of the signer’s identity and willingness to sign, but also make a layperson’s judgment about the signer’s ability to understand the document. If the signer cannot respond intelligibly in conversation, the signer is to be considered not competent to sign - at that moment in time. Therefore, I would be required to refuse based on my layperson’s judgment that the signer is not competent. In this situation presented, the signer is engaging in conversation, is alert, communicating clearly and appears to understand what he is signing. I would be required to complete the lawfully requested notarial act. Since this is in a medical environment, I could choose to consult the signer’s doctor for a professional opinion, if I doubt the signer’s awareness. I believe the social worker’s opinion and demands are not relevant, as they are not a signer’s medical professional or an practicing attorney. Additional, if I refused to provide a lawful request of service, based solely on the social workers demand, I may be subject to charges of official misconduct. Misconduct may cause me to be removed for office. (MCL 55.297)

Joanne

14 May 2019

I would proceed due to the fact that I have known the person in the past and am able to distinguish when they are their lucid self verses in an Alzheimers state

Michele Williamson

14 May 2019

Under the current circumstances, I would feel comfortable proceeding . I would also make careful & clear notes in my journal regarding the situation.

Wendy DuFour

14 May 2019

Proceed. Social worker has no legal authority over signer. As long as I am convinced he is aware and stable my opinion counts.

Linnea

14 May 2019

Absent an “effective” POA with an available attorney-in-fact to join, I would ask the signor to contact their doctor and give verbal permission for the doctor to speak with me to provide a medical opinion as to signor’s capacity to make independent decisions such as the one that is the subject of this notarization. I would go with the doctor’s medical opinion and document in my notary journal.

Walter S Farfan

14 May 2019

I would NOT proceed.

Karen Lee Proctor

15 May 2019

I would proceed as at that point, I have already determined that the signer is willing to sign and aware of the document's significance.

Yvonne Walton

15 May 2019

I would ask the Social Worker for POA, If she doesn't have one I'll sign his documents, all long as he communicates with me and gave me a proper Id,

sandy nauman

15 May 2019

I would ask the signer a series of questions if he answers correctly I will notarize the document.

Colleen Thibaut

16 May 2019

The person is already in an assisted living facility! It has already been determined that he is unable to live alone. Alzheimer's patients have occasional moments of lucidity. They will also agree to most everything. All important legal documents should have been taken care of as soon as the diagnosis was made. A long time friend is likely seeing the patient in a different light. The social worker is out of line, but the notary should at least have a witness or family of the client with her. It's a notary's job to determine competency and ability to understand ( not medically...but using common sense) of the signer...not just do the notarization because he's an old friend. It's not our job to determine the relevance or legality of the document ( there are so very many scams out there attacking the elderly and disabled), but, in this particular scenario, where the notary is a long time friend, it is the notary's duty to protect her friend. Alzheimer's is a horrible, nasty, deceitful disease. It can play many tricks. I know, because I was the caregiver for my husband for five years, who passed away from Alzheimer's.

steve

16 May 2019

Thanks for asking me my opinion. I am not an expert in mental competency. I would not proceed with the notary. The social worker is a government employee and has authority to protect the signer from making a poor judgment. Not only does this person not understand what they are signing because of the mental challenge; our government has reverified it. I am not an authority on this issue. However that's how I see it. Thanks for letting me give my opinion.

Kathleen M Abear

16 May 2019

I would proceed the worker has no POA

Willie

17 May 2019

I would proceed, because of the relationship between the person and myself

Elizabeth lopez

17 May 2019

I wouldn’t sign. Do what the social worker said. Just be on the safe side.

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