Posted by BrendaTx on 2/1/08 7:26pm
Msg #233680
What should the notary do?
According to another notary on another board the XYZ posed a situation in their monthly publication wherein the the signer is elderly and her son helps her write her name. He "takes her hand and begins assisting her to write. What should you do?"
The answer is given as: "You should never notarize if the signer cannot write his or her name without assistance. The son might simply be helping, but he also might be forcing her to sign something she doesn’t agree to."
The original poster was PAW...and kudos to him for catching it and sharing it.
It is NOT true that a disability is necessarily a reason to stop a signer from signing. In Texas, the correct way to handle this would be for the notary to sign the name for the person...well, the rules are right here below...once again, the XYZ doesn't realize that while that may be true for CA it's not true for everyone.
Texas law says...
406.0165. SIGNING DOCUMENT FOR INDIVIDUAL WITH
DISABILITY. (a) A notary may sign the name of an individual who is
physically unable to sign or make a mark on a document presented for
notarization if directed to do so by that individual, in the
presence of a witness who has no legal or equitable interest in any
real or personal property that is the subject of, or is affected by,
the document being signed. The notary shall require identification
of the witness in the same manner as from an acknowledging person
under Section 121.005, Civil Practice and Remedies Code.
(b) A notary who signs a document under this section shall
write, beneath the signature, the following or a substantially
similar sentence:
"Signature affixed by notary in the presence of (name of
witness), a disinterested witness, under Section 406.0165,
Government Code."
(c) A signature made under this section is effective as the
signature of the individual on whose behalf the signature was made
for any purpose. A subsequent bona fide purchaser for value may
rely on the signature of the notary as evidence of the individual's
consent to execution of the document.
(d) In this section, "disability" means a physical
impairment that impedes the ability to sign or make a mark on a
document.
Added by Acts 1997, 75th Leg., ch. 1218, � 1, eff. Sept. 1, 1997.
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Interesting, I thought.
| Reply by PeterRado/FL on 2/1/08 7:43pm
Msg #233684
Re: Here's what Florida says. Very similar
For a Person with a Disability Who Directs Another to Sign.
On a rare occasion, you may be asked to notarize the signature of a person who cannot sign a
document in the usual manner. An individual with a disability may direct a notary to sign on his or her
behalf. §117.05(14)(b)(d). In a sense, one person substitutes his hands for the hands of the person with a
disability. You may notarize this signature but you should indicate the unusual circumstances in the
notarial certificate. The following guidelines may be helpful.
Question the person to make
sure that he or she understands
the nature and effect of the
document to be signed. If the
person is blind, read the entire
document to him or her. If
the person does not understand,
refer him or her to an
attorney for legal advice and
do not proceed with the
notarization.
Ask for proper identification
from the person with a disability.
It is not necessary to
require identification from the
designated signer. Think of
that person only as the “hands”
of the person with a disability.
The notary may then sign the
signature of the person with a
disability at the direction of
and in the presence of that
person.
Perform the appropriate
notarial act: administer an
oath or take an acknowledgment.
Your notarial act
should be directed to the
person with a disability.
Complete the notarial certificate
with the required information.
When stating whose
signature is being notarized, it
would be best to indicate the
special circumstances of the
signing.
Two persons with no interest
in the transaction must
witness the signing of the
document and the
notarization and that their
names and addresses be
clearly printed below their
signatures. Unless otherwise
required by law for the
particular document, it is not
necessary for the witnesses’
signatures to be notarized.
Be sure to get the witnesses and the designated signer to sign your journal and make appropriate
notes.
| Reply by jba/fl on 2/1/08 7:50pm
Msg #233686
Re: Here's what Florida says. Very similar
You beat me to it Peter...our laws regarding this are very similar indeed.
Peter - where are you located? Me, Orlando
| Reply by PeterRado/FL on 2/1/08 7:51pm
Msg #233687
Re: Here's what Florida says. Very similar
West palm
| Reply by Becca_FL on 2/1/08 8:43pm
Msg #233703
It's nice to 'see' you over here in NotRot land, Peter. :-) n/m
| Reply by BrendaTx on 2/1/08 7:54pm
Msg #233688
I'm just glad that Paul posted this wacky-doo...
The moral of the story: Don't trust anyone else to tell you how to notarize. Learn your rules carefully, then go through the pertinent laws of your state doing a key word search for "notary" and "notarize".
You'll learn an awful lot of important information. The Government Code is where most of it is for Texas. But, there are some pretty important points in the other codes as well.
| Reply by JK/TX on 2/1/08 7:59pm
Msg #233691
Re: I'm just glad that Paul posted this wacky-doo...
Seems to me ….. Rigid state laws and rules (especially CA's from what I read here) for the notary would create many law suits and claims of invalid docs due to the notary certification or lack thereof. (frivolous suits)
While I joke about the Texas statue regarding notary certs, you’ve got to give them credit for keeping a level of common sense in the laws………. Sometimes less is more..... rigid rules, I mean 
| Reply by JanetK_CA on 2/2/08 12:17am
Msg #233743
Hold on, pardner...
Just for the record, it's a BIGGGG mistake to assume that everything that XYZ says automatically reflects California law. I may still be a bit fuzzy headed after a few days in bed with a nasty bug, but I don't recall any mention of these restrictions in the CA handbook. In fact, the only reference I could find was a provision for Signature by X, with two witnesses, for a disabled person who was unable to sign their own name.
I think the folks at XYZ must live in their own little world... But I think I've said enough about them over the years -- all jmho! ;>
| Reply by BrendaTx on 2/2/08 8:41am
Msg #233775
Re: Hold on, pardner...
**Just for the record, it's a BIGGGG mistake to assume that everything that XYZ says automatically reflects California law.**
How right you are, Janet...but my goodness, it's not easy to believe that an organization bases their scenarios and teachings on nothing. Second time I've done that in my recollection. Point well taken!
| Reply by BrendaTx on 2/2/08 8:45am
Msg #233776
Re: Hold on, pardner...also, Janet...
Did you notice how I danced around not using "assume" in that previous post? 
| Reply by JanetK_CA on 2/4/08 2:08am
Msg #233929
Re: Hold on, pardner...
Well, my stuffy head still had me a bit foggy, because when I read the original post you referred to at the beginning of this thread (I think...), it did pretty much reflect California law -- with some of XYZ's own interpretation thrown in, it seems. FWIW, though, my post above was more in response to JK/TX.
More importantly, though, I feel you and PAW did a good thing bringing to everyone's attention one more example of how careful we need to be to not take what XYZ says as gospel!!
| Reply by Maureen_nh on 2/1/08 8:21pm
Msg #233694
Re: NH Guidelines
What if a person cannot sign his or her own name?
A Justice of the Peace may still perform a notarial act for a person who is unable to sign his or her name due to a physical disability or other inability to write. Some accommodation should be made to allow a person with this type of disability to have a document notarized. While the notarial laws do not specifically address this issue, other statutes do. For example, in the context of the Uniform Commercial Code (RSA 382-A:1-201), the word "signed'' is defined to include any symbol executed or adopted by a party with present intention to authenticate a writing. Best practice would be to permit the person to sign the document by marking an “X” or other symbol on the signature line. If the person is unable to make any mark at all and has a signature stamp, this may also be permitted. The Justice of the Peace should exercise considerable caution in making sure the signature, whether a symbol or stamp, is the true signature of the person before him or her. Having a witness in addition to the Justice of the Peace is recommended.
If another person needs to make the mark or signature for the person, the notary should add a statement to the notarial certificate stating what actually occurred at the notarization. For example if a notary is notarizing a document for John Doe, who is a quadriplegic, and Jane Doe, his wife, signs his name after he communicates to the notary his intent that the document be signed, the notary could write: “Notarized in the presence of John Doe, who was unable to sign his name due to a disability. Mr. Doe communicated his intent to sign this document and his wife Jane Doe signed his name in my presence.”
| Reply by PeterRado/FL on 2/2/08 11:41am
Msg #233804
Re: THX Brenda n/m
| Reply by MichiganAl on 2/2/08 6:57am
Msg #233760
Same in Michigan
55.293 Person with physical limitations; signature by notary public.
Sec. 33.
A notary public may sign the name of a person whose physical characteristics limit his or her capacity to sign or make a mark on a record presented for notarization under all of the following conditions:
(a) The notary public is orally, verbally, physically, or through electronic or mechanical means provided by the person and directed by that person to sign that person's name.
(b) The person is in the physical presence of the notary public.
(c) The notary public inscribes beneath the signature:
“Signature affixed pursuant to section 33 of the Michigan notary public act.”.
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