What Would You Do: The case of the immobilized 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?

Imagine that you’ve been called to someone’s home to perform a notarization. When you arrive, you find that the signer is suffering from a medical condition that has immobilized him, so he is unable to speak, write his name or even make a mark such as ‘X’ on his own. The only type of communication he can make is to nod his head “yes” or “no.” However, his family tells you that he needs to have his signature on some important documents notarized.

What would you do?

Given that the signer is completely unable to write or speak, would you proceed with the notarization? Do you feel that being able to nod his head is sufficient for you to communicate with him directly and establish his willingness to sign and awareness? How would you handle this situation? Would you refuse the notarization, or choose another option to proceed?

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.

David Thun is the Assistant Managing Editor with the National Notary Association.

Notary Basics: Determining a signer’s willingness

5 tips when notarizing for medical patients

66 Comments

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ALAN W WALDO

30 Aug 2019

First, if their face was completely covered as in you cartoon, I'd have a problem ID'ing the client. On the other hand if they could be ID'ed confidently I believe they could instruct someone, a friend or family member, to make their signature for them (not me).

Lulu Medina

02 Sep 2019

He can't sign.

Thomas Doyle

suggest they have guardian appointed

Orlando Andino

Have a witness and then have the signer signalling by closing and open his eyes as agreement to the signing performed.

Reuben

I would have to refuse the notarization for not being able to communicate properly with the signer, if the signer could speak I would be able to sign for the signer if requested. FL

Robert

In Florida a signer who has been properly indemnified and who is unable to sign or sign by mark can instruct the Notary to sign on their behalf as signature by notary and two witnesses unrelated to signer must be present at the same time. As for communication asking yes and no questions to establish awareness and competency should be ok so long as the notary and witnesses are convinced.

Sandeep K Saxena

Make sure that you are alone in the room with the customer and ask him/her if he/she has read the contents of the document, does he/she agree with the contents and willing to get the document notarized? If he/she nods 'yes' then you may proceed with the notary signature.

jane gabbert

I have signed for them in the past. There is a sample of the form to use in our state handbook for notaries. The young man could communicate and answer my questions by blinking his eyes. It worked just fine

Clinton Henderson

It seems to me that the Notary could get approval to have a witness sign for him, since he can acknowlege by nodding his head. proceed like other impaired person.

Gina McCall

I would not do the notary. A lot of factors come into play with that scenario.

Patti R

Ask if the patient has a Power of Attorney document, or ask the patient if a family member can sign for him/her. Make sure the patient nods after you name a family member.

Robert Garza

It is my understanding that in Texas a notary can sign on that person's behalf As long as it is in front of a disinterested witness.

Michael E Harris

Assuming that the document was not too long, I would ask the family members to leave the room. I would read the document aloud to the 'signer' to confirm that he knows what he is supposed to sign. I suppose that before reading the documenet, I would have a short 'conversation, with the signer to confirm his ability to understand what is happening.

Jorge Maria Perez

First I will confirm that the person is who says is with the hospital. Then ask he or her if approves the notarization (if the person is conscious of course); an affirmative movement of his/her head would be enough. Then use the signature by proxy procedure. If he/her wants me the Notary to sign on their behalf, of course I will only do it in the disabled person's presence and other two other witnesses that are not having any interest in the document being notarized. Possible, hospital personnel as a nurse.

Jennifer Faiz

It would depend on the situation, the age of the signer, and the type of document. I would opt for signature by subscribing witness if the singer was unable to sign. If anything seemed shady, I would refuse to do the notarization.

Michele Cusack

In California, an immobilized person cannot sign by mark, as no one is allowed to guide his hand, but can direct another person to sign a power of attorney or health care directive for him. The person who signs is the person the notary identifies and whose signature the notary notarizes.

Rafael A Peralta

I would not do it.

Patti Heberling

I would begin by asking everyone to leave the room. Then I would ask the sign or if he would be able to answer questions with a yes or no nod. To nod once for yes and two for no. Then I would proceed to ask him various questions such as was Samuel Adams our first President of the United States. If he nodded twice, I would proceed with other various type questions to see if he was mentally aware and capable of what was going on around him. I think at that point, I would feel more comfortable notarizing his “signature”. His signature could be a simple mark by placing a pen in his available hand, or even his mouth, and asking him to make a mark on the paper. I would, of course, ask his permission to do it that way. Then I would ask him if that was his signature. If he nodded yes, then I would proceed.

Raquel Printiss

I had a situation in where the family of a person who was hospitalized insisted that documents need to be signed and notarized . The person was somewhat unresponsive and could not even hold a pen in their hand . The loves ones kept insisting that I help the patient sign documents, and that I should notarize them. I felt, that me helping this signer would be totally unethical as they did not have an understanding of what they were being asked to sign, and it was at this time that I called the signing agency and informed them of what was going on. and the condition of the signer. Needless to say the signing agency was unaware of the signers condition. This signing was cancelled. In my opinion terminating this signing was the right thing to do, as the signer did not know or understand what they were signing and did not have the ability to sign any documents using a pen.

Monica

You are there to identify person and notarize a signature. If the signer can not sign then you can not notarize.

Evelyn K Graham

If the signer is unable to speak or give his signature, I would not notarize, but advise them to seek a lawyers assistance. As a notary, I would not feel comfortable in this situation. Even if the signer could blink once for yes and twice for no. To much fraud in our world today.

Amaury

I think that person in that condition must ya e a power of attorney in place, in other words another person capable to handle his business and sign for him.

Trang do

I thought we could not notarize the signature on this case

Barbara McBain-Grant

I would contact the NNA and ask them. Then I would review my States Rules and Procedures in respect to this Type of Notarization.

Karlene Chance

I won't use a nod as consent to official legal documents. There should be at least one witness to the proceedings, which can stand up in court.

Ima Darlene Lindley

After verifying with the doctor this person is of sound mind, I would with (his-her) nod accept the persons copy of driver lic., soc sec. And with nod of agreeance accept a family member's signature with copy of driver lic, soc sec. on his/her behalf.

Joe pfeiffer

I would ask family members to leave the area. I would make sure he has the capacity and is oriented. I would read what he is needed to be acknowledged. I would request two credible witnesses that know the individual. I actually, had to notarize a document for a patient in the hospital and followed what I just said. Nursing staff was able to provide me with some info in the presence of the patient and with his permission to share some information.

Josephine Nichols

I have a family that suffering from a manger stroke. And he family need to handle all to the business, with health insurance. And she need power of attorney as his wife. How can I notarized her paper

National Notary Association

03 Sep 2019

Hello. Unless you are a qualified attorney, you may not provide advice to the family how to obtain power of attorney or other legal advice. The family would need to contact an attorney for assistance and instructions how to proceed.

Kimberely Johnson

I would say NO, reason being, I do not know for sure he understands fully what is going on. If he looks like the picture, he is also under A LOT of medication. Otherwise you could do the two witness to say that yes he agrees to his signature, but again I would NOT notarized a Power of Attorney .

Jacqueline D Doss

I would politely ask that everyone leave the room so that I may speak to the signer alone. I would then ask a few yes or no questions to find out if he is signing of his own free will & if he understands what he is signing. I would also need to find out of he has someone designated to sign on his behalf. If every answer indicates he understands, then the person designated to sign the documents will sign "as such as such." If the answers show that he does not agree, then I would leave the signing & contact the appropriate authorities if need be.

Beth

I probably would not notarize for him. Can’t wait to hear the correct answer though.

Brian Milbank

In New Mexico notary law, you may execute a Signature by Proxy. Properly ID the principal; Properly ID 2 witnesses who are not conflicted (i.e., stand to benefit/are named in the document(s)) Ask the principal, "New Mexico notary law allows me sign as your proxy. Nod yes if you wish me to do this for you." "Do you understand the contents of this document? Nod yes if you do." "Are you doing this of your own free will and accord? Nod yes if you are." On the notarial certificate, sign for the principal and annotate with your state's language: "Signature affixed by Notary Public in the presence of and , pursuant to Subsection D of Section 7 of the Notary Public Act (NMSA 14-12A-7-[D}" Have the two witnesses sign next to the proxy signature. Annotate the notary journal appropriately, including the information for two witnesses. Stamp the document.

KIMBERLY MILLER

I could do a third party certificate or attorney in fact

Mary Kurtz

I wouldn’t do it (Notarize)

Fasil Yilma

I won't notarize

Becki Wheeler

I would see if there somebody that has power of attorney for him. If not then he would have to put the pen in his mouth and make a mark in my book and the document with two witnesses of course. And he would have to nod yes or no if he understands the document and to what he is signing and give him an oath If needed.

Sandra

I work in a hospital as a secretary and, notary. I would refuse.

Joe Goddard

In Florida the notary may sign for the person, provided they have proper ID and you can see there face to ID them. They must be able to answer your questions and ensure you that they understand the document as you read it to them.

Cheryl Willard

The notary can sign the name of a person whose physical characteristics limit his or her capacity to sign or make a mark on a record presented for notarization as long as the notary is orally, verbally, physically or through electronic or mechanical means provided by the person and directed by that person to sign that person’s name, the person is in the physical presence of the notary and the notary inscribes beneath the signature: “Signature affixed pursuant to section 33 of the Michigan notary public act.”

Blanca

You always can refuse to sign in situation or intentions are not clear

David

Have a family member sign the persons n as me, and initial ttb he signature.

Larry Emsweller

if the signer was a ham radio operator as am I, the consent & answers to questions could be taped out on my hand in morse code. There are other ways it could be handled, but this is probably the most unique.

Emily Quiroa

I would refuse the botarization

Desmond Hudson

I would check their ID and ask them some basic questions and see if they could respond accurately with head nods

Charles Van Zee

I am not a trained medical professional to determine the mental condition of a person who is completely immobilized. Furthermore, if his head is completely bandaged or hidden, there is no way of identifying the person. For these 2 reasons I would not perform the notarization.

David Long

Interview the client and the witness or witnesses separately. Establish the relationships. And verify the client is cognitive. Verify the IDs. Notarize the person signing and note the situation.

Kathy Sanders

1 - immobilized? Yet able to nod head yes/no - verify this and/or ask that individual acknowledge understanding by blinking eyes for yes / no? 2 - You state "needs to have his signature on some important documents notarized" - do these already have signature? Then absolutely not - who signed on this person's behalf. 3 - Does the individual have a power-of-attorney or other designee to sign on their behalf - can this be confirmed with certainty as legal document. 4 - "important documents" - in most cases could be delayed to determine if individual has a permanent or temporary condition and how "urgent" the signature requirement is and by whom - most instances in life for medical emergency situations can be delayed. I would decline notarization without more information.

Louise

I would proceed only if a current State or Govt issued Photo ID is present. The person assisting with signature must have photo Id and must get the nod when asked if thiis person is who they say they are and has the authority to sign.

MARIAN L MOCZYDLOWSKI

I WOULD NOT NOTARIZE UNLESS PERSON COULD AT LEAST MAKE AN "X."

Alcey Hecker

If the person is immobilized, I would ask for proof of Power of Attorney of the person who could legally sign in the persons stead.

Dalia Uriostegui

I would not notarize to someone that nods his head. I do not know if he fully understanding what type of document I am notarizing for him. He should have the document notarize before he got sick or in his state of mind. One should start planning ahead of time when he or she is conscious of what he or she is doing.

Angie Gallegos

I would first see if they have a POA (Power of Attorney) in place or POA Documents that support that a different person is able to act as him if he were ever incapacitated or heavily medicated. If there aren't any documents than unfortunately I wouldn't notarize the document.

Vivienne Caldwell

It depends on the State the client lives in. They can use a Power Of Attorney, a Representative Signer or signature by proxy. With a signature by proxy they must have 2 witnesses and must be signed in the presence of the client. If there are no other options do not proceed and encourage the client to contact a lawyer.

Cheryl Kaster

If the signer were unable to communicate with me I would not consider a shake of the head to indicate they understood what I was asking them concerning their awareness and willingness to sign the document before them. Hawaii has a law that permits the signer to verbally authorize us to sign for them, once we have received a note from the patient's physician saying they are not able to physically sign but are able to make their own decisions. We can then sign the persons name, by us, and I also cit the specific statute of HRS that permits this. Otherwise, sorry, no can do!

Mercedes Diaz

Now days with Technology this is not a problem...First, take a picture of the signer to show his/her incapacity to sign. Second, take a video with the cell phone of the notary and the signer, while the notary reads outloud and clear to the signer the section to be signed. Third, Capture the answer from the signer by the movement of a finger, the nodding expression of the face, or the blinking of the eyes depending on the immobilization of the signer. Once all these is accomplished, then proceed to print the picture and attach it to the documents with the notary's email address and phone number for contact to provide the live video taken. The video itself will be the proof of the signer's will. Also the video will provide all the necessary details since it has recorded the date, time and place of the signing).

Christy Hayes

This signer needs to have a court appointed Guardian or Trustee (Perhaps a spouse with a Power Of Attorney for financial and medical). Plus what is being notarized anyway? No patient should be signing away their assets to anyone else. e

Notarized No! Power of Attorney needs to be presented YES. These are fun little mysteries to solve.

04 Sep 2019

Melissa Suter

I would ask to see their ID so I can compare the picture (if only the eyes) & any other documentation (medical chart?) to verify identity.. Blink 1x for NO, blink 2x for yes - just to establish their level of understanding in the whole thing. I would ask if they give the family member present permission to sign on their behalf?

The 'Mummy' can't sign. Ramas II would have to appoint an High Priest as a Power Of Attorney, even if temporary.

Nikki

First I ask for his ID and I consult with his doctor to make sure he can be able to understand everything and he can be able to make decision and I notarize after I see he can make is to nod his head

Patricvia Giangrande

I would refuse the notarization. I would not be comfortable in this situation and it's not worth risking losing your license or being sued if something goes wrong.

Kathleen A Lutsch

05 Sep 2019

This scenario came up in my family in California before I was a notary a number of years ago. The attorney who had handled the legal affairs for the party needing the notarization was summoned and he brought a notary from another legal office with him and the doctor familiar with the patient was also on hand. The patient's son who was to be granted Power of Attorney, was then identified in the normal fashion and the patient made her mark on the document. The son was not personally known to the attorney or the notary or the doctor. At the time, personally known could have been used if it applied. Questions were asked and a nod of the head was used to answer.

Andra Burden

06 Sep 2019

I am a new Notary but if it needed to be done. I would video the affirmation (nod) after reading and making sure he understood, I would also have 2 or 3 witnesses to nod and have his wife/parent/POA sign off. I would then document the whole process.

Tim

I wouldn’t do it unless I “personally” knew the individual, otherwise wouldn’t do the signing.

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