Posted by Prosperity on 8/31/10 8:19pm
Msg #351115

I had to terminate a signing tonight

I was advised that the husband, who was on title, had a stroke and was authorized to sign with an "X". I requested, and received the instructions in writing. When I got to the home, the husband was totally incapable of even signing with an "X". The wife said that she would have to "help" him to sign. This was already in violation of the instructions, which stated the husband must be able to make the "X" by himself. I called the Title Company who authorized the wife to help the husband. He was totally incapacitated. He could not communicate whatsoever. He could not talk, nod, blink, or communicate any other way, which would indicate that he was signing these documents under his own will and without duress. I told the company that I wouldn't be able to notarize anything if I could not ensure that the client knew and understood what he was signing. The wife assured me that he understood, but he was unable to communicate with me at all. I apologized and told them that I would be unable to do the signing. The Title Company was very understanding. I don't know if the lender will feel the same. What could I had done differently?

Reply by sueharke on 8/31/10 8:26pm
Msg #351116

You did the right thing to protect your license and pocketbook. If you had allowed the signer to sign an "X" under those circumstances you might have opened yourself up to a lawsuit.

Reply by JimAZ on 8/31/10 8:36pm
Msg #351118

I completely agree with your decision. If the signer is incapable, in your opinion, of understanding what they are doing,,,,,you should terminate the signing. Wife should get a POA.

Reply by FlaNotary2 on 8/31/10 9:27pm
Msg #351126

Wife can't get POA if the Husband can't sign one

What the Wife needs to do is contact a lawyer and seek a legal guardianship through the courts.

It breaks my heart when these kind of things happen. Elderly people whose kids are trying to get them to sign a POA to avoid the guardianship process, but the person is too incapacitated to even sign the POA. Yes, guardianship is expensive but that's what happens when you wait too long.

A word of advice to those in "my age bracket" ... have a lawyer prepare a Durable Power of Attorney (durable meaning that it isn't effective by subsequent incapcity), appointing one of your children, or your spouse or some other relative, as your attorney-in-fact. Keep it in a safe place in your possession so it can't be used without your knowledge. Once you become incapacitated make sure that the person you have appointed knows where to find the document so they can act on your behalf.

Reply by Susan Fischer on 8/31/10 9:58pm
Msg #351129

Another good POA is a 'Springing' POA - which, 'springs'

into effect upon the (documented and agreed upon by the principal's doctors) incapatation of the principal.

Reply by JimAZ on 8/31/10 10:13pm
Msg #351133

Re: Wife can't get POA if the Husband can't sign one

That would be my last words regarding POA to the wife. Then I would terminate the signing. Apparently from your response you would start giving legal advise to the wife. We all know that is a no, no unless you are an attorney. Wife needs to seek legal advise outside of us notaries.

Reply by Marian_in_CA on 9/1/10 12:51am
Msg #351145

"If the signer is incapable, in your opinion, of understanding what they are doing..."

In this case, there was no way to know if he understood or not. He may very COULD have understood... but he didn't have ability to communicate that understanding. Those are actually two different things. There are a lot of terrible diseases out there that affect the physical body without altering mental capacity.

Instead of a POA, if she doesn't already have one... she would need to go after a conservatorship.

Reply by JanetK_CA on 9/1/10 1:33am
Msg #351149

"he didn't have ability to communicate that understanding"

Yep! This seems to be the key element. If it were in California, I'd treat this as if I were dealing with a person who spoke a language I don't. Without being able to communicate directly with that person, I would be prohibited from notarizing. I imagine this will be another area that will vary a lot from state to state, but I can't think of what the OP could have done differently. I have to believe I would have done the same thing.

Reply by Marian_in_CA on 9/1/10 2:34am
Msg #351154

It is for this very reason that my husband and I both have signed POA documents in our safe giving the other authority to act if we become incapacitated or unable to communicate. The caveat that we put on there is that it simply be need to be backed up by a letter from a medical professional.

Reply by Susan Fischer on 8/31/10 9:50pm
Msg #351128

In Oregon, it would be possible, barring any red flags:

"The notary, by the act of notarizing, declares that the signer did so freely and willingly. This can be
especially important when people who are easily victimized must sign legal documents; i.e., minors, the infirm, and non-English speaking individuals.

The notary must make a judgment that the signer is aware of what they are signing. If the notary is questioning the awareness of the signer, the notary can engage in normal conversation with the individual. After a few minutes, it should be apparent if he or she is incoherent, disoriented, or otherwise incapacitated. When in doubt, the notary can get the opinion of a doctor or an attorney. Make sure the doctor or attorney signs the journal, and then make the appropriate notation in the journal that they attest the signer has sufficient awareness of the notarial act to execute that act."

Reply by ReneeK_MI on 9/1/10 5:44am
Msg #351158

Pathetic, sad & inexcusable that it even got that far

Assuming the gentleman's condition didn't suddenly get worse the day you were there, it makes me feel so angry that the L.O. put them (and YOU) in this position in the first place.

I had this happen to me once, too - on a Reverse (where there's supposed to be all that pre-closing counseling, right?). The poor soul, her home wasn't even fit to inhabit and there was some cash-out that was supposed to pay back taxes (saving from eventual foreclosure) and put on a badly-needed roof. There were about 5 people there when I arrived, a VERY orchestrated effort was made by them to try and 'cover' the borrower's absolute & unquestionable lack of lucidity. The desperate need was palpable ...

When I told them I simply couldn't do this, 2 of them burst into sobs. Ok ...so it gets even better ... intuitively I asked "Is she under guardianship?" Yes. GRRRR! Further questioning revealed that the L.O. knew & advised about the 'orchestration' efforts because going through the court would take too long. Title never even picked up on that!

I was SO TICKED OFF at the L.O. How DARE they put all of us in these terribly emotional situations that force us to play 'bad person with a cold heart'. I think of that family all the time and hope that someone was able to do right by them & for them.

Reply by Prosperity on 9/1/10 6:14am
Msg #351160

Nicely Said

I just felt so bad. I felt sorry for the wife and especially him b/c I believe he really wanted to say whatever he was thinking. He just couldn't. He couldn't smile. He couldn't frown. This was an eye opener for me. Thanks for all the comments.

Reply by MW/VA on 9/1/10 9:10am
Msg #351169

Re: Nicely Said

That was a very sad situation. It's too bad that many people do not understand how POA's work & get one in place while there is time. I get calls for general notary work for that exact purpose. I've often seen that there is a very narrow window of time to get a POA done when someone becomes ill.

Reply by Stamper_WI on 9/1/10 8:08am
Msg #351162

Re: Pathetic, sad & inexcusable that it even got that far

When each of my kids turned 18, I had them fill out a POA, Medical POA and medical directive.
2 yrs ago, one of them was temporaily incapacitated from a brain virus. I was able to make medical decisions and pay bills out of her accounts for her. As she regained her capabilities, I slowly backed off. Her memory is terrible so she still asks me what's going on occaisionally.
I also have all that and review it with them every yr or so.

Reply by ReneeK_MI on 9/1/10 9:30am
Msg #351172

OMG - discovered a new way to communicate!

This just infuriated me, having been in that situation and knowing how awful I felt for SO long!

In your situation, it sounds like "Locked-In Syndrome", so I Googled ways to communicate with someone in this situation, and found something I would NEVER have thought of!

Sniffing. One sniff for yes, two for no, etc.

Just putting that into the tool-box. =)

Reply by jba/fl on 9/1/10 10:10am
Msg #351182

Re: OMG - discovered a new way to communicate!

That sounds promising to say the least. Must remember - who'd of thunk?

Thanks, Renee.

Reply by Linda_H/FL on 9/1/10 12:07pm
Msg #351195

Thanks Renee...great tip to hang onto...

too bad won't help OP - signer can't even make mark ..

And I have a problem, from a notarial standpoint, with her "helping" him sign...it's not his own free will if someone is guiding his hand IMO...it may be his intention but it's not his free will.

They really need to get this guy conserved...so sad..

Reply by Linda_H/FL on 9/1/10 12:09pm
Msg #351196

s/b free act and deed...not "free will" n/m

Reply by GOLDGIRL/CA on 9/1/10 1:49pm
Msg #351209

Re: s/b free act and deed...not "free will"

The fact that someone has to help "guide" the person's signature is a game-ender right there. I've been in situations where someone placed their hand over the signer's hand to move the pen around. That means someone is actually signing for someone else. That someone else might as well not even be there! These are terrible situations for all parties to be in.

Reply by MikeC/NY on 9/1/10 9:57pm
Msg #351260

Re: s/b free act and deed...not "free will"

"The fact that someone has to help "guide" the person's signature is a game-ender right there"

Why? if you're able to determine through whatever means (such as that which Renee suggested, which I think is brilliant) that the individual a) understands what he or she is signing, and b) indicates that he or she is willing to sign, why should it matter if someone guides the hand?

Obviously, if you can't communicate at all with the signer, there is no way you can notarize. I just don't see how guiding the hand would be an automatic disqualifier. It's not unusual for a perfectly functioning mind to be trapped inside a body that doesn't work - look at Stephen Hawkings, for example...

Reply by GOLDGIRL/CA on 9/2/10 12:48am
Msg #351267

Re: s/b free act and deed...not "free will"

Because the person who is supposed to be signing, is not signing. Someone else is signing for them. And it is not the signer's signature. It is the way the person guiding the hand would sign. Simple as that. But I do see what you mean. I could be dealing with somebody who was paralyzed, for example, but with whom I could carry on a perfectly normal conversation. (I have never had a situation remotely resembling that, however.) In that case, I would call the TC/lender to see if the other person could "sign" for them. Still, I am unqualified to make any of these difficult judgments and would never presume to do so. On the face of it, however, someone "writing" for someone else is just too over the top for me. Holding a pen in the hand of a basically lifeless limb and moving the pen for that person results in a "signature" that is not that of the person who is supposed to be signing. There must laws that address how people who cannot physically sign their name can consent to a document...

Reply by ReneeK_MI on 9/2/10 5:33am
Msg #351278

Surprised nobody mentioned signature by proxy ...

MI does allow the notary public to execute the signature for a disabled person - IF there is direct communication & direction to do so. Surely MI isn't the only state allowing for that, we're not usually alone in the progressive lane. =)