Notarizations in Eldercare Facilities

Patients and residents of eldercare facilities (e.g., nursing homes and assisted living retirement communities) need the services of notaries just as often as the rest of the population, perhaps even more. Notaries who serve them are usually friends of the signers’ families, notary employees working for eldercare facilities at which the signers live, or mobile notaries that provide the convenience of traveling to the signer’s doorstep.

Many nursing homes and other types of eldercare facilities do not provide notarial services for their patients or clients; they call for independent mobile notaries. However, in some instances, a notary who is employed by an eldercare facility may be asked to perform a notarization for a signer who lives in the facility.

Today, the American Association of Notaries (AAN) discusses notarizing documents in eldercare facilities from both the perspective of notary employees and independent mobile notaries. There are obstacles to this type of work, but the AAN cautions notaries to give these assignments thoughtful consideration before shunning them. Our aging population should have access to professional notarial services.

Dilemma of an AAN Member

An AAN member, whom we shall call Jane, contacted the AAN office to report a problem. Jane is an employee at an eldercare facility and she notarized a document for a patient of the facility. The document was an important one that transferred some of the signer’s assets. Jane recently learned that the notarization has been called into question.

The patient, “Mrs. Smith,” willingly signed the document in Jane’s presence. According to Jane, Mrs. Smith knew exactly what she was signing and why. However, a month later, Mrs. Smith and her family claim that Mrs. Smith has no memory of signing the document. Mrs. Smith denies that she signed the document.

Does this mean that Jane did something wrong? Based on what is stated above, there is no evidence that Jane made a notarial error.

Jane identified the signer before notarizing the document. Jane knew Mrs. Smith through their association at the eldercare facility. Using personal knowledge of identity is lawful in Jane’s state. Complaining parties have not suggested that Jane made an error of identity.

As stated above, Jane had no reservations about Mrs. Smith’s ability to understand what she was signing; Jane says that Mrs. Smith signed of her own free will.

Perhaps Mrs. Smith suffered a stroke during the period between the date of signing the document and the first date that Mrs. Smith said that she does not remember signing the document. Jane said that Mrs. Smith was perfectly cognizant of her actions on the date she signed.

So, what can Jane do? If this complaint goes forward and Jane is accused of a notarial error, Jane’s defense is to tell the truth. She must firmly deny that Mrs. Smith had any problems with cognizance on the day she signed the document. Jane will state that Mrs. Smith was aware of her actions and explain why she believes that to be so.

As long as Jane followed her employer’s policies regarding notarizing for patients, we assume that Jane will have her employer’s support.

In hindsight of Jane’s problems, here are a few suggestions for eldercare facilities and their notary employees:

• This is a perfect example of why all active notaries should purchase errors and omissions (E&O) policies.
• Eldercare facilities should provide E&O policies for notaries on staff who notarize for patients or residents.
• Eldercare facility administrators should be familiar with notarial procedures and they should establish procedures for employees to follow when they notarize for patients or residents.
• Notary employees of eldercare facilities (like Jane) should be sure that they know their employers’ policies regarding notarizing documents for patients and residents.
• Notaries should request that signers in eldercare facilities present ID or have credible witnesses serve to identify the signers.
• Many facilities have a blanket “employees do not notarize for patients” policy. This should be communicated to all employees.
• We suggest that eldercare facilities share the link to the AAN Notary Locator so that patients, residents, or family members can locate independent mobile notaries. (Short link for sharing: https://goo.gl/7AjbY2 )

Mobile Notaries & Eldercare Facility Assignments

Being prepared to provide mobile notary services for signers in eldercare facilities begins with planning.

Step One - Protect yourself from situations like Jane has encountered. Jane properly notarized a document. Now, because of the diminished memory of Mrs. Smith, Jane must prove that she performed a proper notarization. She may be required to seek legal counsel. An E&O policy is the first line of defense in situations like Jane’s.

All active notaries need E&O coverage. Go to the AAN site, select your state, look to the left, and look for the E&O policy link. (If you cannot find one, call us at 800-721-6223.)

Step Two - Look up your state’s requirements for identifying signers using credible witnesses. Learn them well.

Step Three – Be careful to make detailed notes in your notary journal.

Step Four – Prepare ahead to take the call and set an appointment. Know what to say.

• Ask how many documents you will notarize. Calculate your fee for the notarizations involved, plus your travel fee.
• Quote your fee; advise the caller that you will need payment upon arrival. The caller is usually a friend or family member of the signer if the signer is a patient in a nursing home. Note: Those who live in assisted living facilities are still very much in control of their lives and business transactions. They may call a notary on their own or they may ask for an employee of the assisted living community to place the call.
• Advise the caller that you must be able to identify the signer. He or she must have identification in the form of a state ID card, state driver license, or a U.S. passport. If those are not available, there must be one or two parties available with proper ID who can act as credible witnesses and are willing to swear to the signer’s identity. (Notaries must consult their states’ laws for acceptable ID and credible witness requirements.)
• If the caller is also the signer, you can probably determine immediately if the caller is aware of his or her actions. If the caller is not the signer, let the caller know that you must be able to ascertain that the signer is cognizant of his or her actions. Tell the caller that if the signer does not seem to understand why he or she is signing the document at hand, you will decline to notarize the document. Don’t ask the caller about medication that the signer may have taken unless you ask this of all mobile notary clients that call for your services. Just reinforce to the caller that in order for you to notarize a document, the signer of the document must be aware of what he or she is signing and signing of his or her own free will.
• Tell the caller you may require a moment alone with the signer to ask him or her questions.
• Agree upon a time.
• Finally, recap with the caller what you said above:

“Please have your payment ready when I arrive. Once I am paid and I can properly identify the signer, we will go forward.

I will then ask the signer to tell me that he or she understands the document’s contents and that he or she is signing the document of his or her own free will. If the signer’s answers are satisfactory, I will complete the notarization.

If the signer does not seem cognizant of his or her actions, I must, by law, decline the notarization. I will refund the fee for the notarization in the amount of $X, but my travel fee in the amount of $XX will not be refunded.”

The Appointment

Many will find it beneficial to prepare a receipt itemizing the notary fee and travel fee before leaving for the assignment. This is helpful if you have to decline a notarization.

Ask for payment; issue a receipt. You should probably leave if you are not paid when you arrive as you as agreed. If the caller was untruthful about the payment, you may be dealing with dishonest people.

Identify the signer. You must decline the notarization if you cannot identify the signer.

Signer Competency

Notaries are not trained psychologists, but they generally can determine if a person is aware of his or her actions. People who are advanced in years deserve the same treatment as those who are younger. You must pay close attention to every detail that helps you determine if the signer is (or is not) aware of his or her actions. Start making mental notes when you enter the signer’s presence.

Introduce yourself to the signer. Talk to him or her for a moment to put the signer at ease. Tell the signer that you are a notary public and that you are there to witness his or her signature on an important document. Be respectful. Let him or her know that you are required to ask certain questions of signers.

Ask if he or she is signing the document of his or her own free will. Suggest that he or she give you a brief description or purpose of the document you have been called to notarize. Ask the signer if he or she has read the document and understands it. If you are satisfied with the answers, ask the signer to sign the document.

(Decline the notarization if you are not satisfied with the answers.)

Document Everything

Notaries can use their journals to record observations that will help them remember transactions at which they have been the presiding notary. Document anything you want to remember.

Oral Ceremony

If the document is attached to a jurat certificate, ask the signer to swear or affirm to the facts in the document. If the document is attached to an acknowledgment form, ask the signer if he or she acknowledges that this is his or her signature and that he or she signed the document for genuine purposes.

Payment Methods

We get a lot of feedback from unhappy notaries who have received bad checks. Therefore, notaries should probably avoid accepting checks. Payment by credit or debit card is rapidly becoming the most popular form of payment. Check out SquareUp and Quicken if you are not already set up to receive credit card payments

Questions? Comments? Let us know! Write us at editor@usnotaries.com or talk to us on our Facebook page!

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.