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Handling Incompetent Signers

by American Association of Notaries
Unfortunately, there are a number of families that wait until tragedy hits to start trying to get their estate fairs in order. Depending on the severity of the tragedy, it could be too late to use the services of a notary public.

I have been to nursing homes, private homes, hospitals, and other venues where I've met with signers whose relatives set up the appointment, only to arrive and find the signer unaware of what was going on and in no physical condition or mental state to sign any document. I certainly feel sympathy for the family that finds themselves in this predicament, but the only service I can provide when this happens is a referral to an attorney.

Recently, I arrived at a hospital to do a signing of a Power of Attorney that required two witnesses. The daughter of the signer arranged the appointment. Upon arrival at the appointment, the daughter introduced me to her mother and reminded her mother why I was there. After the introductions, the daughter told her mother (the signer) that she was going to find two witnesses. The daughter left the room after speaking with her mother to look for two witnesses. While the daughter was gone, I started talking to the signer (her mother, Mrs. Smith) who was lying in the hospital bed. I introduced myself again to Mrs. Smith, and the first thing she asked me was how we were related. Of course a red flag went up immediately. Before I could answer Mrs. Smith, she then said she did not understand what was going on. She then asked me again how we were related and kept repeating that she did not understand what was going on.

When Mrs. Smith's daughter returned with the two witnesses, I informed her that I was unable to notarize her mother's signature, because she admitted that she did not understand what was going on. I also informed the daughter that Mrs. Smith thought I was a relative. I told the daughter at this time she would probably need to contact an attorney to assist with her mother's affairs.

Some states do a pretty good job explaining the notary public's responsibility when dealing with the competency of signers. Colorado's Notary Public Handbook, suggest that it is the notary's responsibility to assess the signer's basic competence and understanding of the document.

Indiana's notary public guide addresses the competency of the signer and also the competency of the credible witness if any are used to identify the signer.

I think the longer you perform your duties as a notary public, you begin to understand that the service you provide extends beyond notarizing a signer's signature. It also includes providing extra layers of prevention for those unable to fend for themselves.

-- Phyllis Traylor, U.S. Army Retired is a Contributing Writer with the American Association of Notaries

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Legal disclaimer: The American Association of Notaries seeks to provide timely articles for notaries to assist them with information and ideas for managing their notary businesses, enhancing their notary educations, and securing their notary supplies but makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of the information contained . Information in this article is not intended as legal advice. We are not attorneys. We do not pretend to be attorneys. Though we will sometimes provide information regarding federal laws and statutes and the laws and statutes of each state, we have gathered the information from a variety of sources. We do not warrant the information gathered from those sources. It is your responsibility to know the appropriate laws governing your state. Notaries are advised to seek the advice of an attorney in their state if they have legal questions about how to notarize.
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