Posted by NC_Notary on 12/8/09 8:57am
Msg #313439

Compentent to sign but may be incompetent?????

I received a call from a title company to do a closing for a seller for property in CA. The father (seller) is living in NC with daughter and the son is still in CA. Sounds like there may be a rift with the brother & sister in regards to the sale of home. I am also being told the father is incompetent but competent enough to sign because he knows what is going on. Does that even make sense???? What questions should I ask the father to determine if he is competent enough to sign the documents??

Reply by Linda_H/FL on 12/8/09 9:02am
Msg #313442

Who said he's incompetent? Is he "incompetent" or "incapable"?? Two very separate distinctions...

I'll reserve further comments until you respond..

Reply by NC_Notary on 12/8/09 9:13am
Msg #313448

That was the word the title company used.....

Reply by Bob_Chicago on 12/8/09 9:13am
Msg #313449

Same ? as Linda. It is the TC's risk, as they will

be insuring the validaiy of the dox signed by Daddy.
Sounds like it could turn into a hornet's nest, if kids are
fighting over daddy's property. If so , you will be right in the middle.
I would discuss with TC as you are , most likely, not competent to
determine if Dad is Competent. None or us really are.
That said, when I ?? the competence of a singer I chat with them
about current events. Politics, sports, new etc.
Also ask themto describe the transaction in their own words, What are they doing
and why. In some cases , you might ask to be left alone with the person.
Takes notes as to what you asked, and respnses.
Good luck.

Reply by Linda_H/FL on 12/8/09 9:24am
Msg #313456

Agree with Bob about questions to ask him BUT

I wouldn't touch it with a ten-foot pole without questioning the TC further - where did they get this determination? Incompetence is determined by medical professionals, and if he's been declared incompetent I'm not so sure you can notarize at all - I know when my mother was declared incompetent, all her decision making authority ceased - her own free will was no longer her own free will because she didn't know any better - she also couldn't swear to facts - because since she's incompetent how do you know she even REALLY realizes what she's swearing to. He may sound lucid enough, and God knows she did too at times - but you just never know.

Not to mention sounds like you have a family brouhaha in the making here...and any notary that does this is right square in the middle of it later.

I do disagree that the TC is insuring the validity of the docs he signs - TC is insuring the validity of the Seller's ownership of the property along with mortgagee's first lien position against any oversights/errors by the title searcher, not anyone's mental competence.

Absent a durable POA, the smart family will get a conservator/guardian appointed for Daddy's affairs and take it from there...

MHO

Reply by Bob_Chicago on 12/8/09 3:44pm
Msg #313527

Disagree on one point. A title policy DOES , IMO , insure

over the inavalidity of a doc in the chain of title. That is one of the main
protections of an owner's/lender's title policy.
The TC insures over ownership or validity of a lien which turns out to be defective becase of adocument in the chain of title , which is defective due to such things as
forgery, incompetency, unknown heirs, etc. etc. which are defects of title which
are NOT apparent on the public record.

Reply by Linda_H/FL on 12/8/09 5:36pm
Msg #313546

You're right Bob...I stand corrected n/m

Reply by MW/VA on 12/8/09 9:19am
Msg #313452

Has he been legally declared "incompetent" & there is a guardian appointed? In that case, it would be a POA matter & I wouldn't touch it otherwise. If it is someone throwing around the term, that is another matter. I'm not an attorney, yadayadayada, but I am personally very careful about signings that involve elderly people. I wouldn't participate in a transaction where they are being coerced to sign anything. IMO it is prudent to find out exactly what this is about before agreeing to proceed.

Reply by Notarysigner on 12/8/09 10:19am
Msg #313460

Re: Competent to sign but may be incompetent?????

I agree with the previous posters although I personally would not touch it. I have done these with POA but otherwise, here, an attorney is the way to go. IMO

Reply by FAN_IL on 12/8/09 11:15am
Msg #313478

Re: If someone has been declared incompetent, it has been

done by court order based on a medical review. A judge will declare someone incompetent and appoint a legal guardian, usually but not necessarily a family member, to oversee that person's affairs. Someone's legal guardian will not need a PoA to sign on that person's behalf, because that person no longer has the right to sign on their own behalf. A guardian has the right to manage that person's financial estate and make decisions regarding their medical care.

If this man has been declared incompetent, then it doesn't matter what kind of conversation you're able to have w/ him. Only his guardian can sign on his behalf. When a guardian signs on someone's behalf, they must present their Letters of Office, usually issued by the county clerk, wh/ gives the guardian the authority to sign. The Letters of Office will usually be stamped w/ the embossed seal of the county clerk.

At least this is the process in Illinois, and while I'm not an attorney, the process may not differ too much from state to state.

Reply by Stamper_WI on 12/8/09 11:41am
Msg #313482

Had one similar

Twice with the same lady. Both times she could describe what she was signing and why. She was in agreement. Basically she was selling land parcels her Dad had left her. She knew the terms etc. But she kept going off on tangents in her thoughts. She was fixtated on the fact she never changed her name back from her divorce and she really hated writing "his" name after hers. After the first meeting I suggested to her daugther she get a POA set up because they still had more land to sell.
When the next parcel was sold, the daughter was still in the process of getting the POA through and attorney because the mother was also trustee of a trust. A little more invoved.
Once again the mother knew what she was signing and why. But I also had to go through why she hated her name again. I told the daughter that it was probably the last time I would notarize anything for her Mom

Reply by Louis/AZ on 12/8/09 11:38am
Msg #313481

Everyone here makes good points. The only thing I would add is this: if you have knowledge that this man has been declared incompetent by the court or by a physician, then don't touch this with a ten-foot pole. Now, the only way you would be aware of this is if someone told you or if you were presented with paperwork saying so. Since the TC (and not a physician) told you he was incompetent, I would question the TC further and ask if this his incompetence was declared by the court or a medical professional. If not, then it's up to you to meet with him and determine if he seems competent enough to your satisfaction. If you want to be totally safe, just don't do the signing. Unfortunately, this is one of those sticky situations and there's no way to know for sure if things will be challenged and then come back on you.

I'm not a lawyer....but sometimes...late at night...I like to pretend I am.

Reply by Charles_Ca on 12/8/09 12:23pm
Msg #313488

FWIW since someone else raised the question of

competence I would not want to find my self in the position of having to defend my determination of the signer's competence. I know that I am not capable of making that decision to satisfy a court. YMMV but I'd drop that like a hot potato!

Reply by Rani Sampson on 12/8/09 12:31pm
Msg #313490

Another reason not to touch it: you'll be asked to testify later (without pay).

This case will cost you lots of time later. You're likely to get a phone call, a subpoena to appear at a deposition, and worst case, a subpoena to appear as a witness in court. You won't get paid for any of your time and the lawyers will attack your credibility, which isn't any fun.

Reply by Linda_H/FL on 12/8/09 12:59pm
Msg #313497

N.C. G.S.10B-40(a)2

In part...."In addition to the certifications under subsection (a1) of this section, by making or giving a notarial certificate, whether or not stated in the certificate, a notary certifies to all of the following: (2) At the time of completion of a certificate....If the notarial certificate is for an acknowledgment or the administration of an oath or affirmation, the person whose signature was notarized did not appear in the judgment of the notary to be incompetent, lacking in understanding of the nature and consequences of the transaction requiring the notarial act, or acting involuntarily, under duress, or undue influence."

I'd take this question to my SOS - given you have information regarding the mental competence of the signer, should you refuse to notarize - the statute says the person DID NOT APPEAR, in the judgment of the notary, to be incompetent...etc etc - if you have prior information that the person is incompetent, are you required to make your own determination? And if you DO meet with him anyway and in your opinion he's lucid, are you covered. I, myself, couldn't justify going ahead with the notarization.

Wonder who told title the Seller is incompetent - wonder if the poor guy's fine and this is just a case of family sour grapes.

At any rate, my personal opinion, and note the word "opinion", based on my own 10+ years'
worth of personal experience dealing with dementia, I would not get involved with it.

Good Luck, whatever you do..

Reply by NC_Notary on 12/8/09 1:12pm
Msg #313498

Thank you everyone for your very informative suggestions

There might be some sour grapes but as you all suggested I don't want to take that chance. The title company does have a doctor's note about some memory loss and the brother is insisting his dad has Alzheimer's but has not been able to provide any doctor's notes verifying this.

Thank you again everyone for all the great information!

Reply by JanetK_CA on 12/8/09 3:55pm
Msg #313531

Re: Thank you everyone for your very informative suggestions

Sounds like you already have differences of opinion between offspring. Could end up a hornet's nest...

Reply by flea2001 on 12/8/09 9:53pm
Msg #313583

when in doubt ask the DR. for a letter for his state of mind as anotary we are to collect signatues and that they understand the documents they are presented with. double edge sword.... we are not medical doctors and if this was me i would ask for a medical opionion in this fact then proceed with the signing. this yaked the burden off you as the notary and on to the attending doctor...... if they are not willing to contest to the mental state nor should you