Posted by Art_PA on 8/21/11 12:57pm
Msg #394416
Power of Attorney Issue
While you are waiting for calls try: http://tinyurl.com/43t5jrm This is a link to a PA Supreme Court opinion relating to a Power of Attorney which appeared to have been signed by an incapacitated person by her "X". The husband presented it and used it to withdraw from his comatose wife's retirement plan.
While the notary was not involved in litigation....yet, you can see how the Plan which relied on the POA, may seek to recover the monies erroneously paid to the husband, who then divorced his wife, from the notary. In this case it was proven from medical records that the wife did not have capacity at the time the POA was executed.
A notary must be very careful when notarizing documents for a subject when that person's capacity may later be questioned. When you get that call to meet at the hospital, nursing home, or home, and the subject does not appear "quite right", the best course is to forget the fee and get out of there.
| Reply by Les_CO on 8/21/11 2:55pm
Msg #394417
Thank you!
Very well said!!!!
| Reply by Yoli/CA on 8/21/11 5:02pm
Msg #394429
Thank you, Art, for presenting something we should all keep in mind.
| Reply by Marian_in_CA on 8/21/11 7:31pm
Msg #394435
This supports something that I've always told people: that the notarization has zero impact on the legality of a document. The notary isn't involved, I'm sure, because it isn't the notary's job to determine if the person has the legal capacity to sign something.
Everything I say here pertains to CA... and while I know the case was in PA, I think some of it is still relevant.
Let's say you have somebody who comes to you and appears to be fully alert asking for their signature to be notarized on a contract. You see no issues, and proceed. Then later, you get hauled in to court to testify because that person didn't have the legal authority to sign something because they were under a conservatorship.
This really isn't much different than somebody who is otherwise ill or not "quite right" that you may encounter. I can only speak for my state laws (CA) of course... but our job is NOT to determine if one has the ability to understand/comprehend what they are signing in the sense of the commitment or consequences... only that they can convey to you the nature of the document they are signing. IF they can do that, then you're okay... as far as notarization goes, since all you're doing is verifying their identity.... and NOT their capacity or ability to comprehend anything. To do so would be making a legal determination/UPL and could get you in to some hot water.
This is also why we're allowed to notarize for minors... because notarizing their signature is a completely separate issue from whether they are legally responsible for the document they sign. That's something for the courts to decide.
In CA, if the person can communicate with the notary and can convey to them the nature of the document to the point that they're obviously aware of themselves signing it/declare they have the authority to sign it, or if they are able to take an oath --- then there really is no liability on the notary's part. This is one of the reasons CA has such strict wording.
CA notaries need to be VERY careful about refusing a request in these situations...
I've had to decline before for these, and I've always made very sure that before I did, it was clear to everyone that I was unable to directly communicate with the signer, and I showed the people the state handbook which says I have to be able to do so, and since I can't... they would need to talk to an attorney. I never, ever, ever say anything that would have them think I was telling them the person was incapable of signing.... only that I was unable to properly communicate. It's a really fine line.
Going back to the PA case, it says, "...was suffering from a traumatic brain injury; was intubated (meaning that a machine was breathing for her); was being treated with sedatives which affected her reasoning and judgment; and was unable to make important life decisions due to her aphasia."
I would *think* that this also means that the person would be unable to properly communicate at the time. But, not necessarily.
One of the things that bothers me about notaries is that they ask if people are on medications, etc. Personally, I find that is NONE of the notary's business. What they need to ask is if the person can communicate effectively to carry on a conversation and describe the document they are signing. If *that* answer is no, then there you go.
BUT... I can see how, in some cases, somebody in the position above would be able to communicate, despite the medications and other medication situation. Again, none of THAT is the notary's business nor position to determine. All that matters is (at least for CA) if the person can properly communicate. I know people disagree with me, here.... but that's okay. I just think that it's HIGHLY improper to be asking about personal medical situations in order to make a determination that you aren't allowed to make. Those determinations are for medical and legal authorities -- not the notary.
In these situations, I make copious notes about the situation. It's good, too, because I *HAVE* been called about it. I notarized a signature for a man with dementia who was in and out of it. I actually declined him the first time because he had just been home from the hospital and couldn't carry on a conversation with me. The next week, though, I went earlier in the day and had a full-on conversation with him about his work as a history writer, how he was thankful that his son was taking care of things for him because he knew he was having memory lapses and was scared of not getting it taken care of before he got much worse. He was 100% lucid that second time. TO this day, I remember many vivid details of that conversation. He was a delightful guy who insisted on me eating some of the raspberry cookies he had made that morning. He told me a long story about how he's been wanting to get the POA done for a while but kept forgetting, etc., and was afraid his children would fight over the situation. I had no problems notarizing his signature that day -- none at all.
About a year later, I was called in to an attorney's office for a deposition on the case. One of the children was trying to get the POA thrown out because she said her father wasn't competent when he signed it. I don't know the final outcome, but I never got past the deposition. The attorneys for both sides told me that if it went to court my testimony would be likely stipulated and that I wouldn't need to appear. They also made it clear that I was not involved in the case, just a witness. On the way out, one of them told me that he wished more notaries were like me, because his office actually sues notaries who REFUSE to notarize because they assume or declare that the signer isn't capable of signing because they are on meds or in a hospital. He says too many of them have this idea that they are doctors and judges rolled in to one.
| Reply by JanetK_CA on 8/21/11 8:47pm
Msg #394441
"our job is NOT to determine if one has the ability to understand/comprehend what they are signing in the sense of the commitment or consequences... only that they can convey to you the nature of the document they are signing"
I wish we had the ability to highlight here, because I think this above statement is at the heart of this issue, and in my opinion, it IS a very grey area. The last part of the sentence to me (after "only that..." is the important part. I think we get caught up in semantics here, though, and I'd like to think that most people are thinking of the second part of the above quote when they mention the first part. [At least I hope so - and I hope I didn't just confuse things more...  ]
What comes to mind here is one situation I had where I met with an 80+ year old lady who was very charming and pleasant. We were having a nice conversation and I thought all was well until I asked her to tell me a little something about the document we were about to notarize. She drew a blank, even though it had just been mentioned by someone else. Then she also asked about something else that we had just discussed a few minutes before. It became apparent that she had a serious short-term memory problem. We were able to communicate with each other, but she was unable to convey to me the nature of what she was about to sign. I declined to notarize that day.
These kinds of decisions take some common sense on our parts, but we do have to end up using our own judgment in the end. In my opinion, just because a person is on meds or in a hospital isn't reason enough to turn down an assignment, but at the time of an initial contact, I believe any mobile notary should have the right to say no, regardless of the situation. Once you accept the assignment and travel to the signer, though, a different set of standards should apply.
I also think it's probably just as easy to find an attorney who would say that they'd go after a notary for notarizing for a person who was clearly not aware of what they were doing, as it would be to find ones like Marian described. I completely agree, though, that detailed documentation of whatever the circumstances end up being will never hurt and may end up being your best friend.
| Reply by Art_PA on 8/21/11 9:18pm
Msg #394444
Marian: In your case you made a determination that the borrower had the capacity to sign a legal document, you wisely had a meaningful conversation with him, and made notes. The first time you met him you determined that he did not have capacity. This is not UPL, it is the notary's responsibility to make that determination in PA, and it would surprise me to learn that there is a state in which a notary is legally able to notarize an act by an incompetent.
A notarized acknowledgment is relied upon by lenders, other businesses, and governmental entities. If faced with a borrower who does not know what he or she is signing, a notary should not proceed. That a borrower/signer takes medications or is in the hospital does not mean that person is incapable of understanding that he or she is signing a mortgage, POA, or a will. Personally, I find it difficult to believe an attorney makes a practice of suing notaries who refuse a notarization since he could certainly get another notary, assuming the subject did have capacity. In this case there would be no damages. Practicing law is not an hobby, and you don't sue people for not notarizing a document unless real and substantial damages were suffered. Of course you are in CA where folks do things that those of us in the other 49 states cannot understand.
One can easily imagine a signing when you meet with Mary and Joe, borrowers, only to discover that Joe is suffering from a degree of dementia and has no idea what is happening, and Mary tries to convince you to proceed, while she tells him where to sign, and wants to date the documents because he can't. You have no way of knowing that this is a second marriage, that Mary is leaving Joe after the loan funds, and that Joe's child will sue you. You can see this is different from normal everyday where a wife tells her husband what to do and he understands what he is doing.
The point of this post is that as notaries, we may someday encounter a situation in which we are pressured to notarize, or just get there and find that the subject is unaware of what is happening. In this situation, the best and safest practice is to leave, even though you don't get paid.
| Reply by Marian_in_CA on 8/21/11 9:40pm
Msg #394445
"In your case you made a determination that the borrower had the capacity to sign a legal document, you wisely had a meaningful conversation with him, and made notes. The first time you met him you determined that he did not have capacity. This is not UPL, it is the notary's responsibility to make that determination in PA, and it would surprise me to learn that there is a state in which a notary is legally able to notarize an act by an incompetent."
Actually, no... I never made the determination that he didn't have the capacity to sign. That, to me, is way beyond my duties or authority. I refused to notarize his signature because I couldn't communicate with him properly. Big difference.
| Reply by Marian_in_CA on 8/21/11 9:47pm
Msg #394446
Let me also add...
"I find it difficult to believe an attorney makes a practice of suing notaries who refuse a notarization since he could certainly get another notary, assuming the subject did have capacity."
Nope, in California it is against the law for a notary to refuse a lawful request for notarization. Of course, as a mobile notary, that doesn't mean we have to drive there when asked. But, once we ARE there (or they come to us) if the person is willing to pay for the service, the signer can communicate and express the nature of the document, has proper ID, etc.,... then it's a lawful request and the notary should proceed.
Obviously, if the person can't communicate or doesn't know what's going on... then of course we shouldn't proceed. BUT, IMO the notary (again, I can only speak for CA) should NOT do so because the person is incompetent, ill or demented. They need to refuse based on inability to communicate directly with the notary.
I don't know about others, but I don't let other family member try to direct people about what to do. I need to be able to do the communicating myself.
If companies are relying on a notarization to determine a person's competence, they're not really doing their job properly. A notarized document can still be completely unenforceable by legal standards.
| Reply by Notarysigner on 8/22/11 7:49am
Msg #394452
" I don't know about others, but I don't let other family member try to direct people about what to do. I need to be able to do the communicating myself. "
To me this is the number one sign of "something's not right here". When they tell me their person's in the hospital and they need a POA.....There's the flag right there.
I wish there was a short standard "test" we could give, it would make it so much easier.
The last one I was asked to do was a situation where the person giving the POA was in a come. The son told me the doctor say him sign it. I showed him the wording on the ACK and that was that."....also acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), ..."
The last one I did, the person could not spoke so I gave him two addresses and asked which one did he live at? The second question I asked (showing him a picture of my wife) if it was his wife and he almost spoke! LOL
| Reply by Calnotary on 8/22/11 12:41pm
Msg #394476
This is so funny...
"The last one I did, the person could not spoke so I gave him two addresses and asked which one did he live at? The second question I asked (showing him a picture of my wife) if it was his wife and he almost spoke! LOL"
Oh James this is so funny!
| Reply by JanetK_CA on 8/22/11 1:13pm
Msg #394482
"When they tell me their person's in the hospital and they need a POA.....There's the flag right there."
Unfortunately, many people don't think about these things until it's too late. Also, the older person naturally wants to maintain control over their own affairs for as long as possible. Sometimes health crises hit unexpectedly and then people are scrambling after the fact to take care of business.
I think these situations are certainly ones where we need to be cautious, but I don't think it necessarily means there is foul play in the works. I've done a number for folks who are in the hospital, about to have surgery, and want to take precautions by having a POA (and/or Advanced Health Directive) signed before they go under the knife. Nothing untoward about that, especially if they haven't yet been prepped or put on heavy medication. I've also found it not at all uncommon for family members to call me in those situations.
| Reply by Notarysigner on 8/22/11 1:28pm
Msg #394486
Re: Power of Attorney Issue correct..I
should have made it clear that the flag......meant Proceed with caution!
| Reply by LKT/CA on 8/22/11 4:43pm
Msg #394549
<<<One of the things that bothers me about notaries is that they ask if people are on medications, etc. Personally, I find that is NONE of the notary's business. What they need to ask is if the person can communicate effectively to carry on a conversation and describe the document they are signing. If *that* answer is no, then there you go.>>>
You can ask IF.....not WHAT........To me, the question should be, "Is the patient on any medications **at this time, that would affect their awareness or ability to sign?**" Heavy sedatives, narcotic pain killers like morphine and demerol and sleeping pills can certainly affect one's ability to communicate and carry on a conversation. When people are doped up (half or mostly out of it), they have little ability to communicate or convey anything. The Notary needs to know if the patient is "under the influence".
If you only ask the caller if the patient can communicate and carry on a conversation and describe the document, the answer YES. Then when you get to the appointment, the patient is knocked out because 30 minutes ago, the nurse just gave them a meds. To the caller, the ability to communicate and carry on a conversation means that their family member is "normal". Medications knocking out a "normal" person is another issue.
So yes, I believe it is very proper to ask if the patient is on medication - along with two qualifiers: (1) at this time; (2) that would affect his/her ability to......
It is a waste of time to go to a hospital and find that the patient is asleep and cannot be awakened due to the meds they were given so, yes, I would certainly ask IF....not WHAT.
P.S. I have personal experience with the narcotic demerol after I had surgery years ago.....demerol not only stopped the pain but it put me in La La land! Very powerful narcotic and one not to mess with. Personally, I wouldn't drive or operate machinery after taking demerol.
| Reply by ReneeK_MI on 8/22/11 5:23pm
Msg #394561
Marion, you just rock!
What an incredible intellect you have - I really admire your ability to nail things down in a logical, precise & consise manner. I absolutely agree with you, as I usually do - and when I don't, you're the greatest debate partner ever!
I think you should go to law school. =)
| Reply by LKT/CA on 8/22/11 9:33pm
Msg #394591
<<<On the way out, one of them told me that he wished more notaries were like me, because his office actually sues notaries who REFUSE to notarize because ***they assume or declare that the signer isn't capable of signing because they are on meds or in a hospital***. He says too many of them have this idea that they are doctors and judges rolled in to one.>>>
I'm sure most Notaries are not silly enough to believe or infer that just because someone is in the hospital or on meds means they have NO ability to sign. I think the attorney is exaggerating (and being ridiculous).
| Reply by jba/fl on 8/22/11 9:52pm
Msg #394592
And puffing himself!
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