Understanding Your Notarial Duties
The Importance of Recognizing the Signer’s AwarenessOverview of Powers of Attorney
It does not take a medical professional to observe red flags that could indicate that an individual is not of sound mind. There are certain guidelines every notary should exercise to help establish a client’s competence or legal ability to have items notarized. Keep in mind that these guidelines should be followed even if the signer is a minor.
First of all, to be qualified to sign, the principal must show evidence of the following during the notary ceremony: (1) understanding of the nature and effect of the document to be signed, (2) awareness of the consequences of the document, (3) willingness to sign, and (4) absence of any apparent duress or coercion. In addition, the notary public should also pay close attention to the demeanor of the signer for any indications of intoxication from alcohol or drugs.
If a notary public is unsure whether or not a signer is mentally qualified, the notary should probe further, asking the signer questions before notarizing the document. Notaries are encouraged to involve the signer in a simple conversation to help determine if the signer has the awareness and competence to have his or her signature notarized, especially if the signer is elderly, a minor, in the hospital, in a nursing home, or unable to read, write, and speak in English (or a language in which the notary can communicate and in which the document is written). The following basic questions can be used by the notary to determine the mental capability of the signer, veracity of intent, understanding of the action being taken, and willingness to sign:
What is your name?
What is your address?
Can you tell me what year this is?
Do you know who the president of the United States is?
Can you tell me about the document that you are signing here today?
Can you read and write?
Did anyone read this document to you?
Did you speak with an attorney regarding this document?
Are you signing this document voluntarily?
Is a family member or anyone else forcing you to sign this document?
Is a family member or anyone else threatening you into signing this document?
Do you have problems signing your name? [if applicable]
Why are you in the hospital or nursing home? [if applicable]
The signer must provide coherent answers without any hesitation when responding to the notary’s questions. A notary public must decline a notarization if the signer displays signs of coercion or duress, appears to be intoxicated, or does not seem to understand the document, its effect, or the simple test questions above. If someone with the signer answers the notary’s test questions rather than allowing the signer to answer or attempts to guide the hand of the signer, the notary public should politely ask the individual or individuals to leave the room. Only then will the notary be able to ascertain if the signer understands the document and is signing willingly.
If the signer shows any evidence of uncertainty or reservation, the notary must stop performing the notarial act immediately. If the signer appears intoxicated or heavily medicated, the notary may reschedule the appointment when the signer is lucid. If the signer shows evidence that he or she does not understand the nature and effect of the document, the notary should encourage the signer to seek legal advice from an attorney. Never make any exceptions or exemptions to proper notarial procedures.
Sometimes the signature of a signer may not be legible due to a stroke, arthritis, physical handicap, or illiteracy; but nevertheless, it is still a valid signature.
Be sure to note in your notary journal the signer’s demeanor in the event you may have to testify in court regarding the notarization.
Remember that people are counting on you to use your sound judgment and the authority of your office as a notary to insure that proper notarial procedures are followed, including observing the signer’s apparent awareness and willingness.
Notary bonds and errors and omissions insurance policies provided by this insurance agency, American Association of Notaries, Inc., are underwritten by Western Surety Company, Universal Surety of America, or Surety Bonding Company of America, which are subsidiaries of CNA Surety.