Posted by LKT/CA on 8/21/09 7:52pm
Msg #301268

Durable POA's - possible problem

Earlier today I was called to notarize the signature on a durable POA for finance and a separate POA for health care for a hospital patient. The family member, in another state, stated the patient had a stroke but was alert and able to sign and that a family friend would meet me at the hospital with the documents. Upon arriving, the patient seemed alert and knew who the friend was. The friend introduced me and stated why I was there. I did ask the patient if he knew what the power of attorney was for then the friend chimed in and said "It's so so-and-so can't take care of your affairs. " The patient said "Oh, okay". We proceeded to sign the info. The nurse came in and did whatever she needed to do and we proceeded with signing the POA. Everything seemed to go smoothly.

While at the hospital, I just saw the one document and asked the friend if there was another and he said that was all the lady sent. As I thumbed through it I noticed sections about healthcare so I thought it was all in one doc. Later the lady called to see how things went. When I told her I was only charging her for the one notarization she asked if the friend brought too separate docs. I told her NO, he only gave me one and asked him about the other. She said she emailed the friend two attachments and he must have missed one. I told her to email the other attachment and I would go back. She was very greatful and said she way pay an additional full travel fee to go back out. She also asked if I would have the patient advocate or nurse make a copy for the hospital's files.

Well, I went back out to the hospital to get the other POA signed and when I spoke to the nurse about making a copy for the hospital's file, the same nurse who was in the room during the first notarization, she said, "The patient is confused". I said "Oh, really, he seemed alert when I was here earlier and seemed to know what he was signing because his friend told him who I was and why I was there." The nurse then told me the patient will agree to anything, that's probably why he agreed earlier. I began to ask the patient questions requiring more than a YES/NO answer and sure enough, he responded with something way in left field. This same nurse said nothing during the first time I was there.

Looking back, I didn't ask any questions requiring more than a YES/NO answer since the patient seemed alert and knew who the friend was. The friend was explaining what the paperwork was and the patient said "OK". I wish this nurse had opened her mouth while I was there the first time.

I notarized the signature of a person who at the time, I believed to be cognizant and willing to sign.....now I learning after the fact that he may not have been. I called an attorney I know who has a colleague who's both a probate attorney and notary to see what's what. I haven't heard back from the probate attorney but the first attorney (who is a family law attorney) did mention that "confused", as the nurse stated, is a very vague term and people can have moments of clarity. If the friend hadn't missed one of the POA's, I would have had them both signed and this wouldn't have been an issue since I would not have known the doctor deemed this patient confused and would not have known the patient MAY have just been agreeing to anything, as the nurse put it.

What happens when info is provided after the fact?

Am I only responsible for what I know at the time of the first POA notarization?

Could my assumption that the patient had clarity at the time because he knew the friend, seemed bright and alert, and the nurse saying NOTHING during the first appt mean that AT THAT TIME it was a proper notarization?

I know there's no way I could notarize the second POA but what would you do with the first POA notarization?

Reply by PAW on 8/21/09 8:06pm
Msg #301270

You did what you could with the information at the time. Whether or not your due diligence was sufficient is not ours to decide. Obviously, you had more information the second time around and responded accordingly. There is nothing -you- can do about the first POA. However, you may wish to express your concerns to an attorney, preferably the one that drafted the document, if you know who the attorney was. If not, you may want to seek friendly advice from your own attorney or an attorney you do know.

Reply by LKT/CA on 8/21/09 8:35pm
Msg #301277

I called a 2nd attorney with whom I network and told him of my dilemma and he said I am only responsible for what I know at the time of the notarization....the info I learned later doesn't count for the first notarization. I also spoke to the lady that hired me. It is her father and she understood and was greatful I consulted an attorney and said she would contact me in the near future to get the healthcare POA signed once the father improves. A great weight has been lifted from my shoulders.

Reply by Ernest__CT on 8/21/09 8:54pm
Msg #301280

Sincerely, I wish you the best of luck. Unless we are mental health experts, we have to rely on our _layman's opinion_ of whether the signer is lucid and understands what is to be signed.

Whenever I have a Power of Attorney to be signed and the signature notarized, I advise everyone in the room that I have to ask the principal some questions, and that _only the principal_ can answer. In one case, I walked away from the signing because the daughter-in-law would not keep quiet. Maybe she was being helpful, maybe she wads trying to hide the fact that the signer was not fully competent. I didn't know which, so I left.

The questions go something like this: "Hi. I'm [my name], the Notary Public. How are you feeling today?" "Where do you live?" "Where are we now?" "Do you know what we're going to be doing today?" "What does a Power of Attorney mean to you? Don't worry about giving a perfect legal definition. Just tell me in your own words.". Depending on the answers, I may ask "What year is it?" , "What month is it?", and "Why are you here?"

Never be afraid to refuse to notarize the signature of someone that you _personally_ think may not be competent! As Paul said, some people have good days and bad days, even good hours and bad hours. Remember, we are the last line of defense against fraud.

Reply by LKT/CA on 8/21/09 8:59pm
Msg #301282

Thanks, Ernest....I'm going to ask more questions (without letting family/friends chime in), especially ones that require more than a YES/NO answer.

Reply by Ernest__CT on 8/21/09 9:14pm
Msg #301287

Relax and breathe - you did OK!

I don't think anyone can fault you for your actions.

You're paraphrased the secret perfectly: Ask open-ended questions, not "Yes" or "No" questions!

Reply by Joan Bergstrom on 8/21/09 10:38pm
Msg #301303

No problem, you did it correctly! n/m

Reply by jba/fl on 8/21/09 8:59pm
Msg #301283

Lisa: I think that we do the best we can, with what we have, at that particular time. Just like parentling. Sometimes we just have to let go and not second guess ourselves so much. I really, logically thinking this through, think you did all that you could do for that particular time and circumstance.

My advice (and I know you didn't ask): Enjoy your week-end and breathe deeply. You deserve to do this.

Reply by JanetK_CA on 8/22/09 2:51pm
Msg #301370

Excellent advice!

"I advise everyone in the room that I have to ask the principal some questions, and that _only the principal_ can answer."

I've also learned that this is important. In fact, I try to remember to ask this in advance on the phone with the person who is hiring me. Sometimes it helps, sometimes it doesn't. But the more someone keeps chiming in to try to answer for that person, the less comfortable I feel about doing the notarization.

Bottom line, though, I was once advised by the CA SOS office that, since we are mental health professionals, we are not responsible for determining the mental capacity of a person whose signature we are notarizing and that there is nothing in CA notary law that addresses this. So, imo, this leaves this issue to us as a matter of ethics and general notary procedure - not law. [I think I just posted about this in another thread recently.]

Of course, this doesn't mean that these issues don't weigh heavily on us and are frequently very difficult decisions to make. That just seems to go with the territory.

I'd also like to second the comment made below about making sure the person has acceptable ID. I'm beginning to think I need to ask people to go check. The knee jerk reaction is to say, "of course", but I'm finding it to be a very frequent problem. These are the situations where credible witnesses may be appropriate (again, depending on state laws), but that can become a very time-consuming process, especially when not planned in advance.

Reply by Susan Fischer on 8/21/09 9:49pm
Msg #301288

What a great thread. Thanks. Like a free class at a great

university.

Reply by ReneeK_MI on 8/22/09 4:38am
Msg #301326

Agree you did the best you could do

with what you knew at the time. We certainly don't get any kind of training in this aspect of our job, other than life experience - and you've just become more experienced. =)

Like others mentioned, I engage the elderly or hospitalized or anyone whose abilities I might suspect to be compromised in a conversation, and I'll work in my pertinent questions that way. I've found that people who are compromised sometimes are aware or have a sense of their own challenges, and try to 'cover' for it. My father-in-law was this way throughout his years with Alzheimer's - he'd have fallen into the 'overly agreeable' category, and he could be rather amazingly adept at covering up for his Alzheimer's.

When I met my FIL, he was already living in a care facility due to his dementia. He always was aware that he 'should' know me, and for 6 years he pretended to. He called me "Peanut" to cover for not knowing my name. Now and then he'd slip - God bless him, he tried so hard it brings tears to my eyes, but the slip-ups could be amusing. At our wedding (I obviously married his son), my FIL came through the reception line, shook his son's hand, patted him on the solidly on the back and said "Welcome to the family!"

Reply by CF on 8/22/09 8:39am
Msg #301336

Re: Agree you did the best you could do

Sounds like you did the right thing....and it is great that you had an Attorney to consult with. It is such a "gray area" with providing these services.

I was called to the VA Hospital a few months back to notarize a POA and Health Care Directive. The woman hired me for her ex-husband. She had visited him 5 days previous and he was improving from several medical problems. Five days latter when I show up- he is delirious and looks like a living skeleton. She could not believe how bad he had become over that time frame. I told her there was no-way that I could notarize the documents. She understood....but also started to cry b/c what were they going to do? I told her to consult an attorney. I did not charge her a trip fee.

These situations are hard and we have to use our judgment. Also, save yourself a lot of time by making sure that they have a picture ID.

Reply by Louis/AZ on 8/22/09 2:37pm
Msg #301368

Re: Tip on hospital calls / POA's

For what it's worth, I think you did the right thing. The only thing I have to add is that it's helpful to speak directly to the patient when a family members calls for someone in the hospital, and then I ask the same questions Ernest mentioned: "What are you signing?" "Why are you signing this Power of Attorney?" etc. You should take down the patient's name and room number, look up the hospital's phone# online, and then call the hospital directly. It's happened to me twice where someone handed their cell phone to "the signer" and I arrived to find a very non-lucid signer, and it turned out to be someone else who was on the phone.

If I can't speak to the patient for any reason, I refuse the job right then and there over the phone. Don't believe a family member's assurances that the person is lucid and can communicate. Some of them are honest, but others will tell you whatever they think you want to hear to get you to come out. I love it when some people say, "Oh yes, so-and-so is right here, totally lucid, and able to communicate" and then when I say, "Put them on the phone," they stumble and think of a reason why they "can't talk right now."

Anyhoo, enough of my ranting. I hope this was helpful.