|WWYD? ---POA for client w/mild dementia diagnosis...|
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|WWYD? ---POA for client w/mild dementia diagnosis...|
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Posted by MrEd_Ca on 1/14/09 9:44am
WWYD? ---POA for client w/mild dementia diagnosis...
I recently turned down a request to notarize a Power of Attorney document for an 89 year old woman who had been diagnosed with mild dementia. The request was made by her daughter who lived on the east coast.
I was ok with all of the arraignments until the daughter mentioned, when questioned about mental state, the diagnoses of mild dementia, made by a medical doctor. At that point I back-pedaled & told her I didn't think I could do that... that while I am not a doctor or attorney the phrase 'mild dementia' translates, to me, into reduced capacity to understand what is being signed & the power of the document. I declined the job on that basis & closed by saying 'that other notaries my disagree, & there are certainly a lot of them in the phone book here, for me the issue is reduced capacity to understand/comprehend the document and that I could not be reasonably sure the signer (the 89yr old) would be able to understand/comprehend because of that diagnosis' .
The daughter maintained that her mother was aware of the document & of what she would be signing. The daughter was not very happy with my decision & wanted to know what laws said that & that sort of stuff. The conversation became somewhat difficult at that point. I don't think I said, but should have, that the situation seemed to call for an attorney &/or a conservatorship to protect the 89yr old.
Anyway, what I would like to know is What Would You Do (WWYD) &/or say in a situation such as this? My search of the California notary Handbook said nothing related to 'mild dementia' & a Google search of the phrase --- mild dementia legal --- brought up about 42000 hits, many of them notaries but also a page from lawguru.com that stated that "Once a person lacks testamentary capacity, he cannot execute wills, trusts or powers of attorney... "
Thanks for any reply's on this.
Reply by Linda_H/FL on 1/14/09 10:31am
The doctor may have just mentioned the diagnosis of "mild dementia" in passing in discussing the mother's condition with the daughter and the daughter latched onto those words .... although at 89 some dementia is expected and she's lucky it's only "mild"..
I don't think I would have refused outright - I would have let the daughter know it COULD present a problem but I'd be happy to go meet with her mother - at the least, in meeting with the mother you get to make the determination in person as to whether she was oriented as to day, date and time and whether or not she knew what she was signing. If you're satisfied she's with it, you're a go to get the job done, and if not you let the daughter know her mother's condition is such that you aren't comfortable with it, explain why, and refer her to an attorney for possible probate proceedings.
Mom's on the west coast, daughter on the east coast - I'd at least have gone to see Mom and run with it from there....JMHO
Reply by Leon_CO on 1/14/09 10:43am
First check your state laws. This is covered in my notary laws under 'refusal of service' and 'reasonable care'.
I would have agreed to meet with the mother, then determine her ability to understand what she is doing -- establish her "awareness" by asking her some questions.
If you have access to Alfred Piombino's: 'Notary Public Handbook', he goes into great detail about this in the section that covers "competence", in the chapter 'Oaths and Affirmations'. I strongly urge anyone to read this.
There was also a very good article about this in 'The Notary', published by the Notary Law Institute (November/December 2008 issue). The title of the article is, 'Mental Competence: Does My Customer Really Understand What He's Signing?'
Bottom line: check your notary laws. That's always the first step. And try to get an opinion from your secretary of state.
Reply by Yowheelz on 1/14/09 11:40am
I have to agree with Linda. My mother was diagnosed with "mild demetia" and we found it was often used as a generic term for everything from momentary lapse in memory to who are you. Its a tough call but you really would need to meet the person to know if they were mentally capable to sign the documents.
Reply by Kevin/Ct on 1/14/09 11:52am
It would probably be a good idea for the daughter to have a conservator appointed by the court for both the estate and the person of her mother. The conservator would have the authority to excute documents on behalf of the estate and person of the mother subject to court approval.
Reply by Pat/IL on 1/14/09 1:29pm
This is an interesting question. And I have no answers, only more questions, based on the responses so far. My limited understanding of dimentia is that it is a progressive disease. So, when it is first diagnosed - as mild - maybe it manifests itself as occasional bouts of forgetfulness. This seems to have been the case with my brother-in-law's dad.
At that point, would any judge deem the person incompetent? And is a judgment of incompetence not required for appointment of a guardian or conservator of one's person or estate?
From the responses I have read here, I think I, too, would recommend they speak with a lawyer.
Reply by Kevin/Ct on 1/14/09 3:22pm
The individual does not always have to be physically or mentally incapacitated. He/she may just be elderly, and not wish to manage their estate any longer. The probate court usually keeps a short leash on the conservator, and requires periodic accountings. Transactions by which the conservator may benefit from the estate other than for his fee are always suspect, and would require approval by the probate court. The above is based on Connecticut law.
By way of example title abstractors run into this once in a while. Sometimes you run accross a deed executed by a conservator or attorney-in-fact under a POA which conveys property to the conservator or attorney-in-fact. It is an immediate red flag, and tells the abstractor to look for a court order approving the conveyance.
Reply by BrendaTx on 1/14/09 3:39pm
and it's my personal choice ( and opinion ) to keep myself out of places that aren't profitable...especially if the notarial act could be questioned.
Reply by BrendaTx on 1/14/09 11:54am
People usually donít agree with me on this and thatís okay.
I have had a few of these calls in the past wherein such a diagnosis has been mentioned.
My personal policy is that once theyíve told me that much itís too much for me.
IMHO: The situation they are trying to circumvent is the necessity for costly legal fees attached to guardianship proceedings in the State of Texas. IMHO: They are also attempting to take control of the parentís property in a hurry.
In the State of Texas (last time I worked for a probate attorney, anyhow) there was a means to pay for an indigentís necessary guardianship through certain government funds so itís not like a true indigent is having legal bills foisted upon them.
Iím jaded. I have seen many cases go through lawyersí doors over time and the problems presented by these calls are
- This particular someone with dementia has *some* or an abundance of property which the adult child caller is trying to get hold of fastÖotherwise they would not mind the guardianship proceedings which will allow for the property/assets to be utilized for the wardís careÖespecially here where if thereís no money the county funds will pay for it.
- The signer (aging parent) usually has more than one child and those children will be mad as heck if this happens without due process. Iím going to pass on that kind of dysfunction in my life.
Iím just not going to get myself involved in any kind of notarization once someone tells me that the signer has been maybe diagnosed with a possibility of dementia.
Reply by ReneeK_MI on 1/14/09 12:11pm
Agree with you, Brenda ...
Way too easy to imagine all sorts of bad situations that could result here. First and foremost - you're setting yourself up to pit your notarial 'diagnosis' against that of the doctor's. So, you decide to go see the woman yourself and make your own determination. I think most people who suffer mild to even severe dementia can and DO pull off periods of 'normalcy', but that doesn't change their over-all diagnosis.
Anyway - you see the woman, you determine she's sufficiently cognicent of the document and its implications, and you notarize it.
Let's just imagine there is another relative out there who decides to sue over something the AIF performs with that POA. Imagine you're in court, before the judge - and the judge asks you "Is it true that you were advised by the daughter that a medical diagnosis of 'mild dementia' had already been made? Is it true that you ignored that information and instead came to your own 'diagnosis' of this person's mental capacity?"
None for me, thanks. It is unfortunate, and I've been through this 'life situation' already and no, it's not fun - but there is a process and a time-line that IS available to those who wish to be prepared. To those who don't have the luxury of being prepared ahead of time, we have to follow a different protocol that serves to protect everyone the best that it can.
Reply by Leon_CO on 1/14/09 12:31pm
meeting vs notarizing
Agreeing to meet with someone is one thing. Actually performing the notarization is another.
And I don't use my "imagination" of unforeseen future events when determing a person's ability to sign.
I'm not going to flat out refuse someone without meeting them and having a chance to speak with them. That's simply following the notary laws of my state.
I will ask that I still be paid a travel fee if I feel that this person doesn't know what they're signing.
P.S. "If a Notary can show a judge or jury that he or she did everything expected of a reasonable person, the judge or jury is obligated by law to find the Notary blameless and not liable for damages."
(Colorado notary law. You will have to check your own state's laws on this matter.)
Reply by BrendaTx on 1/14/09 12:45pm
Re: meeting vs notarizing
**And I don't use my "imagination" of unforeseen future events when determing a person's ability to sign.**
That's very good Leon.
I don't have to utilize my imagination either.
Experience and personal observation is something I have learned to pay attention to over the years. It's not worth my time (or their money) to make that dry run and to think I'm smarter than a doctor who has already advised the family regarding the signer.
A doctor's letter is usually necessary in these matters in the case of ward/guardianship. Better I stay away from it than to involve myself in a contested guardianship court file.
People very close to me have asked me to do this and I refused. Someone did it though but my conscience was clear afterward (as well as my integrity/reputation) and that's also a very good thing. Wink intended.
We all have to do what we believe is "right". I happen to like my line of thinking the best.
Reply by MichiganAl on 1/14/09 1:49pm
Completely agree with Brenda, Renee, & others
Wouldn't touch it. Sure part of what we do is to determine someone's mental capacity, but I'm not going to even think about it when I've already got a medical diagnosis that puts someone's mental capacity into question. To even appear that we're contradicting a diagnosed medical condition is risky in my opinion. There are too many ways that can go sideways. They need an attorney, not a notary. And I certainly wouldn't go just to make a travel fee or just to lift their spirits. We're not doctors, we're not lawyers, and last I checked, we're certainly not candy stripers.
Reply by Dennis D Broadbooks on 1/14/09 12:40pm
I'll Agree With You, Brenda...
...as my opinion is they should obtain the services of an attorney in circumstances like this. Within the past month I received a call from someone wanting me to travel to their dying relative's home to notarize a POA they had created themselves. My first question to the caller was whether their relative could answer questions in a coherent manner. The caller replied their relative was on pain medication, under hospice care, slipping in & out of consciousness. I politely informed the caller they should seek out an attorney in situations like this.
Reply by Leon_CO on 1/14/09 12:49pm
slipping in and out of consciousness ...
>> The caller replied their relative was on pain medication, under hospice care, slipping in & out of consciousness. <<
Well, under these circumstances of "slipping in and out of consciousness", I think ANY notary would refuse.
But the original post states:
>> The daughter maintained that her mother was aware of the document & of what she would be signing. <<
In a situation like that, I feel that a visit to the mother is in order. ** A visit. ** Then make a determination.
It doesn't hurt to do that.
Reply by Leon_CO on 1/14/09 12:51pm
If for no other reason ...
A visit from someone might lift her spirits.
And it doesn't matter if the visitor is "just a notary."
Reply by Dennis D Broadbooks on 1/14/09 1:35pm
I Don't Think Anyone...
...who's responding in this thread is being critical of you for making your own determination it's worth it to make a visit. That's your choice & no, it doesn't "hurt" to do that. Others have had experiences in similar situations where they know through the discovery process it's best handled in another manner without making a trip. I don't think you should be faulted for going & conversely I don't believe it's altogether wrong to not go if you've uncovered circumstances which cast a doubt in your mind.
Reply by Bob_Chicago on 1/14/09 1:16pm
Concur with Brenda. I would pass. Don't need that kind
of responsibilty for a few bucks. Might also suggest to daughter
that while she should be truthfull with the next NP who she solicits,
she should not volunteer too much info.
Once NP has notice of a possible problem, the rules change.
We are NOT doctors.
That said, when I encounter a signer who appears to have some degree
of mental incapacity, (with no prior knowledge) , I ask them a few ?? to
satisfy myself as to their ability to acknowledge a doc.
The only general notarizations that I perform are on a probono basis.
(friends a family, and if I get a call on a Sunday from someone taking a minor
out of the USA and need a permission slip signed. If so I meet them at the
corner Mickey Ds)
Illinois permits us to charge one whole dollar for a notarization, and statute
makes no mention of travel fees. I usually suggest that they go to a
UPS Store, Kinkos or to a currency exchange.
Reply by Leon_CO on 1/14/09 1:28pm
That's why there's such a thing as mobile notaries
>> I usually suggest that they go to a UPS Store, Kinkos or to a currency exchange. <<
The reason why we're **mobile** notaries is so that 89-year-old women don't have to leave the house and go to the UPS Store or Kinkos.
I don't know how much everyone else charges, but I charge enough to make it worth my while.
>> That said, when I encounter a signer who appears to have some degree of mental incapacity, (with no prior knowledge) , I ask them a few ?? to satisfy myself as to their ability to acknowledge a doc. <<
And that is exactly what I would do -- make a determination before refusing them.
Reply by LKT/CA on 1/14/09 2:00pm
Agree with Leon
I too would have at least met with the patient and talked to her. The first post says the caller mentioned that her mother has "mild dementia". I don't have to be a doctor or attorney for the signer to answer MY questions correctly: (sample questions) What is your name? Where are you? What is your daughter's name and where does she live? What is this paper and why are you signing it? What did you eat for dinner last night? That's the only determination I need to make.
What is it to me that 20 minutes after I'm gone that the patient does not know what planet she's on? No Notary can be responsible for a patient's mental state before or after a signing. We are not responsible for what happens "down the road" with a POA nor are the squabbles adults create over a POA are our concern either. Follow your state's rules and judge each cases individually.
Reply by Susan Fischer on 1/14/09 1:35pm
Sticky wicket...every situation is different. Some great
Had one last year, ancient 'mother' in a private care home. Son-in-law, local, tried for a POA - but mother had no ID - of any kind. "Lost" purse when kids moved her out to Oregon from back East, SEVEN years prior. While the primary issue was ID, the second issue would have been competence. The poor dear never uttered a word, sat at a table "playing" solitaire, with care-giver popping an M&M into her mouth every 5 or so minutes. She looked at me, but I couldn't make a 'connection.' Daughter not present, just her husband, the son-in-law. I declined on ID issue.
Another case, a 99 year old, daughter was the care-giver. She was tiny and frail, but those eyes were as birght as could be, her jokes were funny, and she asked my name three times. She knew what was up, signed with a signature that was obviously a once-beautiful hand. She couldn't remember my name, but she knew pertinent information to *her* life. Proper ID, knew the purpose of the doc, and adored her family. Daughter could handle the tasks at hand for her mother. She died two days later, in her bed, quietly, knowing her family was all around her. I wept.
Each call is unto its own. Some pass muster, some don't.
Reply by Leon_CO on 1/14/09 1:49pm
I don't want to be sued ...
I don't know if everyone has read my prior posts, but I posted them for a reason:
1) There are some excellent guidelines on determining a person's capacity.
2) If it is stated in your notary laws that you are protected from lawsuit if you use "reasonable care" (or whatever the phrase is in other states), then the burden is not on the notary.
3) The notary can be **sued** (at least in Colorado) for refusing a notarization.
"Notaries who refuse to provide services should be cautioned about potential discrimination lawsuits for refusing to notarize without due cause."
Please understand that, because that is VERY important.
If I tell someone that I refuse to perform a notarization for them, I have to have a very good reason. If my only reason is that I **THINK** a person isn't competent, I could be slapped with a lawsuit (under Colorado law).
So it's in my best interest to at least **visit** the person and establish that. Then, if someone tries to sue me, I have it recorded in my notary journal that I visited with the person, I asked them some questions, ... etc. It's documented. But without that documentation, I don't have a leg to stand on in court.
So you tell me. Should I sit back and do nothing, and get sued? Or make the visit and have myself protected by the entry in my notary journal of everything that transpired?
Reply by Marian_in_CA on 1/14/09 1:56pm
Re: I don't want to be sued ...
I agree with you, Leon. CA is the same, we're not allowed to turn away a legally reasonable request for notarization. I will not turn away a request if someone tells me the person has mild dementia. I know, from experience, that could mean anything. I do agree that a face-to-face visit is always warranted.
Reply by Dennis D Broadbooks on 1/14/09 2:29pm
...it's the opinion of the attorney in our SOS office that a Notary can refuse to perform a notarization for virtually any cause. We don't have to have a good reason, just reasonable doubt. Therein lies one of the differences in how you're approaching this versus Notaries in other states.
Reply by CaliNotary on 1/14/09 6:41pm
Re: I don't want to be sued ...
"So it's in my best interest to at least **visit** the person and establish that."
While it may be illegal for you to refuse to notarize, I have a hard time believing that also means that you're required to travel to the person just because they call you. By that logic, if they called you while you were vacationing in Hawaii, you'd be breaking the law if you didn't hop on a plane back home to meet with them.
Reply by Leon_CO on 1/14/09 7:25pm
Re: I don't want to be sued ...
Do you post things just to say stupid things? Because that is the dumbest thing I have ever seen you post.
Reply by CaliNotary on 1/14/09 7:52pm
Re: I don't want to be sued ...
No, what's dumb is you thinking you're going to be sued if you don't make a trip to the person to determine what their competence level is. When they say you can't refuse to notarize, they mean when the person is standing right in front of you.
But since you obviously feel differently, I'd love to know what the cutoff point in your mind is where you wouldn't worry about being sued if you said no over the phone. 5 miles? Outside of the county? Outside of the state? Obviously there must be a limit, and I'm guessing it's not specified in your handbook, so what is it?
Reply by MichiganAl on 1/14/09 8:31pm
Dumb is thinking that refusing to notarize the signature of someone with diagnosed dementia wouldn't constitute due cause. Dumb is stating that you'd take the assignment if for no other reason than to lift their spirits (That might be the dumbest thing YOU'VE ever posted, and let me tell you, there's a smorgasbord of posts to choose from). Dumb is responding to every single person in the thread who has a differing opinion like it's personal if they don't see it exactly as you do. Dumb is posting such constant inane drivel that people start calling you Captain Obvious.
Reply by Leon_CO on 1/14/09 11:08pm
Re: Dumb? Stupid?
>> Dumb is stating that you'd take the assignment if for no other reason than to lift their spirits <<
No, dumb is not being able to recognize when someone is using humor. So if you're ever having trouble recognizing a joke in the future, just look in the mirror.
Reply by Pat/IL on 1/14/09 11:18pm
Re: Dumb? Stupid?
All I can say about Leon is this: I had to find a Colorado notary for a split signing in Vail last year, and I went right to this board looking for a post by Leon so I could get to his profile.
I was out of luck, because I was unable to hire Leon (I think it was out of his coverage area). And I was further out of luck because they closed the roads anyway because of snow (I thought they could handle a little snow out there, I guess not). So the closing was postponed until the guy got back here anyway.
Point is, I have seen enough of Leon's posts all over the internet to know that he would get the job done properly. If more notaries on this board took the initiative to learn their occupation, and were actually curious about the greater industry (I realize this thread is about a general notarization, not a signing) there would be no reason for the flamacing that goes on here.
I don't always agree with Leon, and I don't in this thread. But I appreciate the times I get to read opposing opinions that make sense. I respect the opinions that are well conceived. And I respect the people who make the effort to post their reasoning. That makes the rare learning experience out of these threads. The diamonds in the rough.
Reply by Leon_CO on 1/14/09 11:35pm
Vail. I would have gone.
Pat, thank you for the kind words. And as for Vail, 2009 is my year for taking risks. So I would have found a way to get there.
Again, thanks. And I agree that it's good to have opposing views, if the arguments are well crafted.
Reply by CaliNotary on 1/15/09 11:33am
Re: Vail. I would have gone.
"And I agree that it's good to have opposing views, if the arguments are well crafted."
Which yours isn't. You still haven't explained to me what the distance cutoff is where you won't have to be worried about being sued by refusing to drive out to meet with somebody. All you did was call my statement dumb, which is hardly a well crafted argument.
Reply by Carolyn Bodley on 1/16/09 10:07am
Re: to Pat - a little snow
*I had to find a Colorado notary for a split signing in Vail last year ... (I think it was out of his coverage area). And I was further out of luck because they closed the roads anyway because of snow (I thought they could handle a little snow out there, I guess not). *
If SSs and TCs opened up an atlas before looking at a profile and picking up a phone, they would see the Continental Divide and the grand mountain ranges on both sides. Had you looked at an atlas, you would have see where Vail is located in proximity to the Springs or any front range location. Instead of calling someone basically three hours away, you would have seen that Dillon, Frisco or Silverthorne would have made better sense. Add winter driving conditions, and that three hours summer conditions could easily be as much as eight hours ONE WAY.
The Rockies are not simply *a* mountain, and when CDOT closes I-70, it's because of a blizzard - snow, ice, wind, whiteout conditions -- there are several stretches along the I-70 corridor, because of massive solid rock formations on both sides, where there is no cell coverage and longer stretches to reach a gas station or a "no vacancy" hotel that filled up before the highway closed!
So until you know have driven in our "little bit of snow" and educate yourself as to Colorado's topography, don't be passing judgment on what we can handle and what we can't!
Reply by Pat/IL on 1/17/09 8:51pm
Re: to Pat - a little snow
Thanks for the education, Carolyn.
Actually, I have driven in Colorado a good number of times - even in winter. That's why I made the wisecrack about thinking they could handle a little bit of snow. I have a lot of respect for some of the drivers in the snowy mountains with the hair pin turns. But, really, that was just a wisecrack. It had nothing to do with the point of my post.
Happy skiing. I love Winter Park!
Reply by Marian_in_CA on 1/14/09 1:50pm
My current FT job is in the eldercare field, so I see this a lot. I also work with people who are certified in geriatrics and understand aspects of it all. Mild dementia is a relative term. And from experience I can tell you that it can mean everything or nothing at all. In fact, there are many times when a person has been diagnosed with mild dementia but doesn't actually have any mental impairment -- they might just need a hearing aid. (And some seniors are very stubborn about wearing them!) Or, sometimes temporary dementia occurs as a result of a kidney or bladder infection. That's why the diagnosis needs to come from not just a family doctor, but from somebody who specializes in geriatrics or after having a complete evaluation.
Plenty of people with "mild dementia" are capable of signing their own documents and making their own decisions. Most of them are perfectly lucid. In fact, even some with dementia have the ability to act coherent, even if they're not. Now, this is from my experience in my job... and has nothing to do with notary law.
When it comes to that, if somebody outright tells me that the person has mild dementia, I will not automatically decline, but I will ask, "Have you consulted an elder law attorney?" I keep the names and numbers of some attorneys that I know that specialize in this field and have no problem referring them out. Those attorneys know their stuff and will be able to advise the families appropriately.
If they insist, I would then just ask to speak to the person directly, rather than try to determine anything from a relative back east. That's another thing I can attest to from my job -- family members do not always make the best evaluations of their loved ones. I've no problem calling grandma to make the appointment, I would just say, "Hi Mrs. Doe. I got your number from your granddaughter, Jane. I understand you are looking for a notary?" The idea is not to give them any suggestive words (like, "Jane said you needed to sign a power of attorney."
If the person is lucid enough to connect the concept of the notary to the document they need to sign, then it will be apparent enough and I would be comfortable. But, I would definitely make note that the family member said she had "mild dementia" -- whatever that means.
Reply by BrendaTx on 1/14/09 2:57pm
Wow...I think itís very interesting
how we all respond with very strong opinions to this situation...and how widely our ways of approaching it swing!
Reply by Marian_in_CA on 1/14/09 4:07pm
Re: Wow...I think itís very interesting
Brenda, I think it's about as widely varied as the degrees of ability when it comes to dementia. It's a scary ground. One thing for certain... notaries really aren't qualified to determined mental capacity, although in many cases it's apparent enough.
In others, all it takes are a couple of random questions to be satisfied. And the questions are pretty easy ones, like, "So, what are we signing today?"
Someone with dementia may not answer in an expected way. Someone who knew what it was would say, "This is a power of attorney," or "I have a healthcare directive..." or "It's a paper for selling my house," or "This is so they don't revive me if my heart stops," something like that.
Where concern comes in is if they say, "I don't know, they just told me to sign it," or "My kids said I needed to sign this and mail it back to them, " etc.
Reply by Linda_H/FL on 1/14/09 4:10pm
I'm surprised the other possible scenario wasn't mentioned
Mom on west coast - daughter on east coast - Mom may be fine, but daughter trying to get control.
Would be nice to know if Mom has any west coast relatives who could help her out.
Reply by Dennis D Broadbooks on 1/14/09 5:17pm
Is There a Reason...
...we haven't heard from you on this topic since your original post, Ed? Could it be you really are THE famous Mr Ed?
A horse is a horse, of course, of course,
And no one can talk to a horse of course
That is, of course, unless the horse is the famous Mister Ed.
Go right to the source and ask the horse
He'll give you the answer that you'll endorse.
He's always on a steady course.
Talk to Mister Ed.
People yakkity yak a streak and waste your time of day
But Mr. Ed will never speak unless he has something to say
A horse is a horse, of course, of course,
And this one'll talk 'til his voice is hoarse.
You never heard of a talking horse?
Well listen to this: "I'm Mister Ed."
Reply by Dennis D Broadbooks on 1/14/09 5:31pm
For the Uninitiated...
...I should have included this URL.
Reply by MrEd_Ca on 1/14/09 6:46pm
Re: My response ---
---- I haven't responded because I have been away from my computer ever since I posted the original question this morning. Also, because I couldn't match any of the very well thought out, & lively, responses everyone (& I mean everyone) has contributed! Thank you all!!
I am still mulling the situation over in my head & asking myself how I would respond if/when a similar situation arises in the future, & wondering what my 90+year old parents would say on my choice ---they are very alert & active & I am very sure they would not tell me if they're doctor delivered a similar diagnosis to them. (I lose sleep thinking of them even driving, but then I lose sleep wondering if my spelling is correct in these posts!)
Reply by LKT/CA on 1/14/09 7:38pm
Re: My response ---
<<<I am still mulling the situation over in my head & asking myself how I would respond if/when a similar situation arises in the future,....>>>
I searched the CA handbook and it does not say we cannot notarize signatures of a person if they have or are diagnosed with a certain disease/condition therefore, to notarize for an ill patient does not mean you are making a judgment on their diagnosis. What it means is that you are making a judgment on whether the person falls within the guidelines of a proper notarization, per the CA SOS which are:
Person appears before you
An acceptable form of ID is presented
You can effectively communicate with them
They appear to understand what they are signing
They are willing to sign
If after meeting with the client and you interview them and your questions are answered to your satisfaction, and they meet the SOS's guidelines, I see no reason to worry about notarizing for the client. Whatever the family does with a POA (good or bad) is not the Notary's concern. Whether one family member doesn't like that the other family member is the AIF and sues, is also not the Notary's concern. The ONLY concern is that the notarization was proper per the CA SOS guidelines.
I had an instance where when I arrived at the appointment, the son says his father had a stroke, was "prescribed" heavy meds and probably could not sign. During the initial phone call my mind must have been someplace else as I didn't think to ask about medication but I suppose because I was going to a "regular" hosptial, it didn't cross my mind. Anyhow, I could have stopped cold in the hallway of the hospital and said I couldn't do the notarization but instead I asked to meet the dad. Talked to dad, he communicated well, knew who he was and who the son was and what he was signing. I took out a piece of scratch paper to see how he signed his name and the signature was just fine and matched his driver's license. Every situation is different and your determinations have to be made individually and in person.
BTW, if I missed the page in the handbook that states that CA notaries cannot notarize signatures for people with diseases/conditions, please direct me to that page.
Reply by LKT/CA on 1/14/09 7:41pm
Re: My response ---
Should have said "........probably could not sign regularly but by mark"........
Reply by JanetK_CA on 1/14/09 9:38pm
Re: My response ---
The only thing I've ever gotten from the CA SOS on this is that, like what Marian said, notaries are not qualified to determine a person's mental capacity and it's not our job to do so. Having said that, there are logical and ethical considerations that each of us have to grapple with when presented with this type of a situation. Some states provide more guidance than others. For CA, it's my belief that it's up to the notary.
BTW, after a cursory look at the new 2009 handbook, I didn't see any reference to where it said that a notary was obligated to notarize for anyone who presented a qualified request and paid the appropriate fee (as I believe it used to). Could be I just missed it. But I certainly don't think anyone should feel obligated to travel to do a notarization. We have a right to turn down anyone we choose -- which most of us often do, for non- and low-paying companies. Working at a desk in a place where the public comes in and where notary public services are advertised is another story. But there again, I think the idea is to not descriminate. We still have to decide for ourselves if that person is signing of their own volition and free will, whatever we feel that means (and is capable of doing so), unless it's defined for you by your state.