Handling Incompetent Signers

Unfortunately, many families wait until tragedy strikes to get their state of affairs 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 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 when this happens, the only service I can provide 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, the daughter introduced me to her mother (the signer) and reminded her mother why I was there. After the introductions, the daughter told her mother that she was going to leave to find 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, Mrs. Smith, 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 that 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. For example, Colorado's Notary Public Handbook suggests 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 as well as the competency of the credible witnesses if any are used to identify the signer.

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

By Phyllis Traylor, a Contributing Writer with the American Association of Notaries, Inc.


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