Posted by Bryce Webb on 12/7/11 12:51pm
Msg #405972

Living Wills

Can/Should a living will be notarized in California? Does anyone know?

Reply by FlaNotary2 on 12/7/11 1:20pm
Msg #405977

It isn't up to the notary

If the client wants their living will notarized, and it has the appropriate wording (or, if not, the client tells you which type of wording to add), you are obligated to comply with their request.

Reply by Roger_OH on 12/7/11 1:31pm
Msg #405978

The requirements for these vary from state to state, and a Living Will is not to be confused with a LAST Will, which is a whole different animal.

With the proliferation of online services that provide forms, they have been known to sometimes provide forms that are not state compliant; so if that's the source of the form, I always suggest that the signer run it by their county probate office to ensure it's OK.

Check your state laws as to whether these are notarizable in your state.

Reply by FlaNotary2 on 12/7/11 1:42pm
Msg #405979

Disagree, Roger

A notary can notarize any instrument of writing as long as the requirements for notarization are met (appearance of signer, proper ID, proper certificate on the document). It would be crossing the line of UPL for the notary to decide whether or not a document can be notarized, especially in California.

Reply by VT_Syrup on 12/7/11 3:05pm
Msg #405988

Disagree, FlaNotary2

I disagree that "a notary can notarize any instrument of writing as long as the requirements for notarization are met". I have no idea if there is a prohibition against notarizing a living will in California, but some documents are clearly illegal, so a notary who knows their illegal should have nothing to do with them. I think this is most likely to come up with copies that are copyright violations, or copies of vital records. Even when it is an affidavit by a document custodian rather than a copy certification by the notary, if the document is marked on its face that it is illegal to copy it (as Pennsylvania birth and death certificates are) the notary should have nothing to do with a copy of the certificate.

Reply by FlaNotary2 on 12/7/11 3:26pm
Msg #405990

Re: Disagree, FlaNotary2

>>> a notary who knows their illegal should have nothing to do with them<<<

That is correct. If the document on its face appears to be illegal, you should not notarize. However, California's laws REQUIRE that a notary comply with a public request for notarization if the requirements are met. A living will is not illegal on its face, and if the document has notarial wording on it who are we to decide whether or not the document can or can not be notarized? That is way overstepping our boundaries as notaries.

Reply by Bryce Webb on 12/7/11 4:34pm
Msg #405992

Re: Disagree, FlaNotary2

I have already verified from the Secritary of State that a "Last Will" cannot be notorized in California. According to them it will invalidate the Last Will. However the person I spoke to was not clear on "Living Wills", which is why I posted the question in the first place.

Reply by Marian_in_CA on 12/7/11 4:41pm
Msg #405994

See below... there is no such thing as a "living will" in CA

A living will is an incorrect term used for an advanced healthcare directive. It has nothing to do with property trusts.

Reply by Notarysigner on 12/7/11 2:12pm
Msg #405981

To me this is two questions......Can yes. Should ? The recommendation is that an improper notarization could invalidate the Document so it should be referred to an atty, If they provide the instructions to do so, then go for it.

Reply by John Tennant on 12/7/11 2:24pm
Msg #405983

Re: Living Wills AKA Living Trust

My wife and I have a revocable living trust drawn here in San Diego by a lawyer. Our signatures are notarized of the documents. To my knowledge, the notarization is not required, however, it helps assure a court of its validity if it is notarized. JMHO.

Reply by JanetK_CA on 12/7/11 2:54pm
Msg #405987

I think you should ask more questions - especially to find out if the document has been prepared by an attorney.

I do a fair amount of executions of attorney-prepared estate plans, some with attorney present, some not. I don't believe there is ever a document in the package that is labeled as a "Living Will" (unless I'm not paying attention since I don't notarize it). That might raise a red flag for me. What exactly are they talking about?

This is not legal advice, just observation from attorney-prepared estate plans (note I am in California and this will vary from state to state): the Last Will and Testament is always just witnessed, not notarized. Living Trusts are always notarized. I can think of at least one other document that is always notarized by one attorney and always just witnessed by another. Go figure...

But if someone came to me directly vs. being referred by an attorney, I would not make any recommendations to them other than to consult an attorney. I'd probably mention, after my usual disclaimer that I'm not an attorney and can't give legal advice, that most of the wills I see don't get notarized here in this state, but if they wanted the document notarized, and if they complied with all other legal requirements, I wouldn't refuse that request. Not up to me. If the document is not a "Will", I would notarize it if they wanted that done.

[Here's what the CA SOS handbook USED to say on that subject:

"The California State Bar advises that when a notary public is asked to notarize a document
which purports to be a will, the notary public should decline and advise the person requesting
the notarization to consult a member of the California State Bar. If an attorney recommends
that the document be notarized, a notary public may do so."

I believe that paragraph has since been removed. I'm not surprised, though, that that is what they would recommend - for reasons I won't comment on... ]

Reply by Marian_in_CA on 12/7/11 4:12pm
Msg #405991

In California, a "Living Will" isn't really a "will" at all or part of a living trust, but an Advanced Healthcare directive for medical decisions.

State law is very clear about how this is handled. See California Probate Section 4700-4701: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=04001-05000&file=4700-4701

I do these all the time, and it's not really legal advice, since it's clearly written in state law.

The form can be signed by two witnesses without a notary. Or, it can be notarized... either way. It can also be all three if the person so desires.

The only exception to this rule is if the person signing the AHCD is a patient in a skilled nursing facility (SNF) at the time it is signed. If that's the case, then the above rule applies but is MUST also be witnessed by a patient advocate or ombudsman, no exceptions.

Reply by Stephanie Santiago on 12/7/11 4:35pm
Msg #405993

I can always count on Marian to respond with a valid and

correct response.
Thank you Marian.

Reply by ikando on 12/7/11 4:47pm
Msg #405997

I work with estate planning attorneys also. In Oklahoma, there is a Last Will and Testament which can be drawn up several ways. Many attorneys like the "self-proving" Last Will which has two witnesses and is notarized. I have also seen wills that only the principal's signature is notarized. Also available is a holographic will which MUST be ENTIRELY handwritten by the principal, in one sitting, no changes, no typing, no other person's hand. The holographic will, therefore, cannot be notarized.

The "Living Will" is, as mentioned before, an Advanced Directive for healthcare, which basically designates how a person is cared for when they are not able to voice their choice. It came into existence because of that drawn out case where the husband and the parents disagreed whether the woman should be kept on life support machines.

That sums up my knowledge on the subject. So, depending upon the answer to the question of what the document is supposed to accomplish will determine whether it is notarized in Oklahoma.

Reply by ikando on 12/7/11 4:47pm
Msg #405998

BTW, in Oklahoma, the Advanced Directive is not notarized.

Reply by JanetK_CA on 12/7/11 10:57pm
Msg #406011

Thanks, Marian, for the reference to the probate code and for making the connection between a "living will" and an "advance healthcare directive". It's been a long time since I've heard it referred to as the former. BTW, the document I referred to in my post above as being handled two different ways by two different attorneys was, in fact, the Advance Healthcare Directive. (The guy who has them notarized also has both of us sign as witnesses. He's the most thorough and detailed of any estate planning attorney I've ever worked with.)