Posted by yoshaCA on 7/18/11 4:49pm
Msg #390062

Interesting request for GNW

I received a call from a local hospital. The 16 year old girl did not have ID and also she could not sign herself. Ok, I am thinking, signature by mark with two witnesses plus credible witnesses for the ID. The document was to give up her baby so the consent part was the most important part. The nurse over the phone said that she could nod yes, but could not speak at all because of the feeding tube. She was of sound mind when she was not on heavy sleeping pills. Therefore, when she awoke she could nod to me approval that she was going to sign by mark. Mine you, she could not write a note either that she was giving approval. I felt, therefore, that this was not enough consent without a lawyer or such there. What do you think? What would you have done?

Reply by Notarysigner on 7/18/11 5:03pm
Msg #390063

2nd grade level test! n/m

Reply by jba/fl on 7/18/11 5:06pm
Msg #390064

Re: Interesting request for GNW n/m

Reply by jba/fl on 7/18/11 5:07pm
Msg #390065

sorry - mistake. did not mean to post. n/m

Reply by JanetK_CA on 7/18/11 5:28pm
Msg #390067

Wow! Tough situation. I think I might have some more questions, like how long is she expected to be on a feeding tube, why couldn't she sign herself or write a note (feeding tube wouldn't cause that), etc., although they may not be able to tell you much because of HIPAA. I think in these types of cases, you have to go with your gut and do what feels right.

However, an underage girl in that type of a situation I would hope has someone looking out for her, a parent, guardian, social services contact or whatever, who might be able to help you better understand the situation and make a determination.

Can't say for sure what I'd do, although my first impression was that I'd make the same decision. If you accepted this one, I think it would be important to come equipped with a very good list of questions to ask. Obviously, this is an issue with major potential consequences. And very sad!

I'll be looking forward to reading other comments on this one.

Reply by MW/VA on 7/18/11 5:47pm
Msg #390070

I wouldn't have touched that one!

Reply by Bob_Chicago on 7/18/11 5:52pm
Msg #390073

Not in CA , and may sound insensitive, , but my first

reaction would be that this sounds like a open invitation to be called as a witness in
a child custody case a few months or years later.
Minor, can't communicate verbally or in writing. no ID, traumatic situaton, etc. etc.
I think that I would do the gingerbread man bit and "run, run, run as fast as you can"
Also , not a doc or nurse, but as I recall, a feeding tube is in your nose, (shades of Vinnie Barbarino) and you can speak.

Reply by Karla/WA on 7/18/11 5:59pm
Msg #390078

Who was prepared to pay your fee? Just wondering..... n/m

Reply by Sylvia_FL on 7/18/11 6:05pm
Msg #390081

Re: Not in CA , and may sound insensitive, , but my first

You are correct Bob. When I had to have a feeding tube it was put in the nose.
(But boy was my throat sore when they removed it) - It is not a pleasant experience.

Reply by HisHughness on 7/18/11 6:09pm
Msg #390082

This is a war story only tangentially relevant.

I tried a criminal case in federal court involving seven defendants, one of whom was a used car dealer (he was not my client). In what may have been the apex of my legal career, the court dismissed charges against all seven based on a defense theory I had developed and that at least two of the other lawyers told me was nonsense. The case never went to the jury.

Later, the stepdaughter of the car dealer came to me. She had had a daughter out of wedlock, and had let her alcoholic mother and felonious/unbalanced stepfather adopt the child. Since then, she had married and had a solid home life, and wanted the child back.

Like all states, in Georgia a minor’s consent to adoption was binding. I searched through adoption decisions in all 50 states (this was long before computerized searches – or even computers – were available), and finally found one decision in Colorado that offered hope. It said that whereas a minor might be able to validly consent to an adoption, a minor could NOT consent to service of process – the adoption proceeding itself.

I filed suit to set aside the adoption based on that theory, which had never been advanced in Georgia. The adoptive father was represented by the same lawyer as in the fraud case; he was one of the lawyers who had told me I didn’t know what I was talking about in that case. The suit was heard by a judge who bought his cars from the car dealer/adoptive father. That judge, of course, held against us, but then it went to the Georgia Supreme Court.

About here is where I should be able to say that the Supreme Court gave the child to the mother. It didn’t happen that way, though. The court held against us 7-0.

The child, growing up with an alcoholic adoptive mother and a stepfather who was several millimeters off center, has been in and out of institutions as an adult. Her half-brother, though, who grew up with the birth mother and her husband, is today a professional with his own thriving, solid family. The mother became my secretary, and I still hear from her occasionally.

Reply by Jessica Ward on 7/18/11 9:42pm
Msg #390097

Re: This is a war story only tangentially relevant.

Holy crap! As an adoptive parent, the idea that a birthparent could change their minds after becoming an adult scares the daylights out of me. Thankfully, my kids' adoptions aren't likely to be ever legally challenged, but this is always something in the back of mind as parents. I can't imagine trying to cover the legal defense necessary for keeping our kids, especially since something like that would likely come out of the blue.

It does sound like quite a legal adventure, but it does sound like the birthmother was a better "parent candidate" than the others. I guess only in family adoptions can you get away without such extensive adoptive parent screenings. My husband and I were screened seven ways to Sunday. (not perfect insurance of a perfect parent, but weeds out a lot of the "wacky").

Reply by SouthernOK on 7/18/11 6:13pm
Msg #390083

I agree with the above posts.

I am betting that there was a nurse with her notary commission in that hospital but they advised her not to touch it and possibly open the hospital to liability.

Reply by LKT/CA on 7/18/11 8:48pm
Msg #390091

I've notarized for a stroke patient - not a minor - who couldn't speak so I devised a ten question multiple choice test. He pointed to the correct answers so I was satisfied that we could communicate. If the minor patient could at least point to the answers, I'd do the same and go ahead and notarize if she got the answers on my test correct. I feel comfortable notarizing in such situations. Go with your intuition. If *you* don't feel comfortable and satisfied that you can communicate with the minor patient, then don't notarize. Do what your heart <within the law> tells you.

Reply by yoshaCA on 7/19/11 12:14am
Msg #390103

The problem in this situation was that she could not point or move her hands in any real way. The mark was going to be a stretch.

Reply by LKT/CA on 7/19/11 12:21am
Msg #390104

Wonder how this child ended up in a hospital on a breathing tube, and unable to move? Not that you asked....maybe someone *volunteered* and said what happen <perhaps a car crash?>......did someone "volunteer" the info is to why this child is in the predicament she's in?

Reply by Marian_in_CA on 7/18/11 9:20pm
Msg #390094

You've got multiple issues here...

If you handle each one on it's own... it's pretty clear cut. I don't know what a lawyer would be able to so. Her age isn't really a factor - as notaries we are not allowed to consider whether or not they have the legal right to sign something. That's outside of our jurisdictions and to do so would be UPL. If the person is legally unable to authorize this... then it will still be that way, notarized or not.



1. Communication issues: If she can respond to your direct questions in a way that fits her ability to communicate with you directly, then this isn't an issue. You have to be creative. If all she can do is nod or shake her head, you'll need to develop some sort of method to determine this.

2. Inability to sign: Yes, signature by mark is perfectly acceptable. Question, though... if she can only communicate by nodding/shaking, and can't write... how will she make the mark? Is she able to make a mark by holding the pen in her mouth? I've done this before... but it was with a person who could speak and had control his facial muscles. Alternatively, some people may have other methods of leaving a mark. One lady I met used her nose and my ink pad. She was almost entirely paralyzed and couldn't speak... but she could move her head a little bit and used that, with a special device to type on a keyboard that translated her answers vocally. She was entirely lucid. That took some creativity, but the nose thing worked great. As long as you can get her to voluntarily make any kind of mark... you're good. Again, you may have to be creative though.

3. Lack of ID: Not uncommon for minors or disabled peopled. Credible witnesses are a very viable option.


Your two credible witnesses can also act as her witness for the signature by mark, that's the good news.

It's a unique situation to be sure, but not an impossible one. As long as you can overcome communication issue and ability to make a mark... you're fine.

As a notary, you are not there to determine if they are willingly giving consent or if what they're doing is legal. You're there to identify the signer, get her signature/mark and make sure she's swearing to the contents/or acknowledging her signature on the document. Beyond that? It's a legal/court issue...and way outside of your responsibilities.

Reply by Jessica Ward on 7/18/11 9:47pm
Msg #390098

In WA, I couldn't touch this. First, I wouldn't sign for a minor without calling the AG's office to see if I can. Second, credible witnesses here only count if the witnesses are personally known by myself and the signer. (What are the odds of that?!). This likely varies state-to-state, but couldn't the minor's parents sign on her behalf?

I'm surprised the hospital didn't cover it. Nearly every time I've gone to a hospital or nursing home, I've had to decline due to insufficient ID, too much medication, or a signer who was simply not aware/cogent (i.e. doesn't know their birthdate). I always follow up with a few days later to see if circumstances have improved, and offer to come back if they have. Every time I've been told "Oh, the hospital's notary just did it for us." (Scary!)

Reply by JandB on 7/19/11 6:49am
Msg #390114

Isn't anybody acting as a POA for her? I'm sure I would decline to notarize. How could you possibly know if she is still in a drug fog even is her eyes are open and she can nod yes to some questions. She might recognize her birthdate but not be able to think through the consequenses of surrendering her child to somebody elses care. She needs an attorney who knows the whole story acting on her behalf.

Reply by Linda_H/FL on 7/19/11 7:21am
Msg #390119

I was thinking and wondering along the same lines, JandB

Unable to talk; on a feeding tube; groggy from sleeping pills (I wonder..??); can't move limbs to make a mark? This screams for court intervention on this child's behalf - appointment of a guardian or conservator AND appointment of an attorney to protect her rights..

Then the side issue (IOW being nosey) - 16 years old and pregnant?? Can you say statutory rape? Was she in this almost vegetative state when the pregnancy occurred? Wow..so many roads to go here...like I said, nosey...

Reply by LKT/CA on 7/19/11 9:50am
Msg #390144

***Isn't anybody acting as a POA for her? I'm sure I would decline to notarize. How could you possibly know if she is still in a drug fog even is her eyes are open and she can nod yes to some questions. She might recognize her birthdate but not be able to think through the consequenses of surrendering her child to somebody elses care. She needs an attorney who knows the whole story acting on her behalf.***

In CA, if the client has a lawful notarial request that can be completed, it must be fulfilled. My heart would go out to this child, but as Marian rightly stated, the issue at hand is not the Notary's concern. CA Notaries cannot arbitrarily refuse a lawful request, the SOS can discipline us for not fulfilling our duties. A Notary must exhaust ALL avenues before declining a notarization, keeping our sympathy and feelings in check.
 
I never ask yes/no questions to test the patient. I ask multiple choice questions that must be answered correctly. Other state's notary rules may give Notaries the liberty of refusing requests at the Notary's discretion but not CA. We are not required to travel to the client but we must complete a lawful request if the customer fulfills their part. Marian's last paragraph in her post pretty much nails it.