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REALLY need input on a closing I have for tomorrow!
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REALLY need input on a closing I have for tomorrow!
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Posted by LindaD/NJ on 1/5/12 10:09pm
Msg #408329

REALLY need input on a closing I have for tomorrow!

Please Hugh and other Atty's and hopefully Sylvia are on. I have a signing tomorrow, split. I am signing wife and husband is in another state. Called # to confirm. Hubbie says you have to speak with Ernastine the counsellor. SOOOOOO, I ask him politely WHY do I have speak to a counsellor? Is she a counsellor for your wife? "Yes, she is in a rehab (checked it out on line it is for achohol and drug abuse) and she is doing great!" He says. I DON"T like to get involved in this stuff at all. So my question is wouldn't I need a, I don't know a Doctors note, written statement at the very least that she is of sound mind? Not just Ernastine the councellor's word for it? Last one I had like this the wife was not in the sleep apnea clinic she was in the psycho ward. She tried to kill herself. That signing was a no go. And not that I do not have compassion I do. But as we know, no one is covering our backs but ourselves. Thanks!!!!!

Reply by LindaD/NJ on 1/5/12 10:16pm
Msg #408333

OOPs! sorry Please anyone with this kind of experience

please give me your input! Thank you!

Reply by jba/fl on 1/5/12 10:25pm
Msg #408334

Re: OOPs! sorry Please anyone with this kind of experience

Did you call the counselor? Perhaps she has info about medications or time availability....she can tell you more than we could.

Reply by LindaD/NJ on 1/5/12 10:30pm
Msg #408335

Re: OOPs! sorry Please anyone with this kind of experience

Thank you for your response. This may be a case where the signer may not be of sound mind. She may or may not. I think I need a Dr. to make that call.

Reply by HisHughness on 1/5/12 10:38pm
Msg #408336

Re: OOPs! sorry Please anyone with this kind of experience

This is not legal advice. Frankly, if you came to me as a lawyer, I wouldn't have any idea what to tell you, except to write me a big fat check and I'll do whatever research is required to give you a answer I feel is correct.

As a signing agent, however, I know exactly what I would do. Neither alcohol nor drug addiction indicate indicate ever-present cognition problems. Confinement in an institution for treatment of mental problems is a different matter, and probably does indicate some continuous problem. Nonetheless, even in those circumstances a potential signer may have periods of complete rationality.

As a notary, you are not charged with the expertise of a psychiatrist, a neurologist, a psychologist, or even a palm reader. You make a reasonable layman's determination as to whether a signer has the capacity to know what he or she is doing. If you can make that determination, then I think you're safe to go ahead. Nor, in my opinion <as a notary>, does a signer have to be mentally aware all the time; as long as he or she is capable at the time of signing, that is sufficient.

For YOUR protection, though, you should be thorough in your examination, and you should make a record as you are doing the examination of what it entailed.

Reply by LindaD/NJ on 1/5/12 10:58pm
Msg #408339

Re: OOPs! sorry Please anyone with this kind of experience

Thank you Hugh. For you thorough post.

Reply by Carolyn Bodley on 1/6/12 9:43am
Msg #408348

Re: OOPs! sorry Please anyone with this kind of experience

Linda, I had a call for a general notarization -- not the same situation, but similar. A gentleman called me that needed a POA from his father who was living with them. It was obvious that the father was quite elderly and dying -- something that they had already told me on the telephone. I told the father that I would have to ask him some questions before we began to be certain he understood what he was signing. I began with the usual questions of asking his name and birthdate and then "today's" date. He laughed and told me that he never knew the date when he was healthy. Then I asked the names and birthdates of his children and wife and then if he could tell me the name of the President. He most certainly knew the name of the President and went into this 5-minute political rage -- which was quite accurate and on spot. AFter that, I had no doubt that his mind was sharp and he knew exactly what he was signing.

Reply by Kate/CA on 1/6/12 12:08am
Msg #408342

Thank you Linda, I needed a good laugh. It just hit me, what did you do with the Psycho ward. Walked real fast. O K, who in the world wanted this signing, called the lender, etc. It is funny, but I wouldn't want to be in your shoes. Sorry, if you knew my situation, you would be glad you gave me a laugh. Hope it works out well.

Reply by LindaD/NJ on 1/6/12 10:46am
Msg #408358

Kate glad to give you a chuckle!!! Better days ahead!!!! n/m

Reply by desktopfull on 1/6/12 9:02am
Msg #408345

I have to wonder why the husband hasn't gone to court and gotten a POA or some other type of court order to handle his wife's affairs, and why is she institutionalized in another state? Something just doesn't pass the smell test here for me and I would run from this one.

Reply by LindaD/NJ on 1/6/12 10:45am
Msg #408357

Yes, Why not a POA. My thoughts exactly. And She is in rehab on medication, mind altering medication for substance abuse. Key element IN rehab. NO NO NO for me. My seal is my livelyhood.

Reply by NJDiva on 1/6/12 11:04am
Msg #408362

Hi Linda! I'm curious to know what the outcome on this is..

as I have some knowledge in this field,-I went to school to become a CADC (Certified Alcohol & Drug Counselor)-it is my experience that most people (not all) are VERY sane. Take out the substances and you have a person of sound mind and body...unless of course, the addiction is just a way of self medicating a mental illness (PTSD, Trauma, Bi-Polar, Depression.) In many circumstances this is the case. However, in today's world, the doctors are prescribing medications, especially for those in rehab...grrr...that's a whole nother OPINION...anyway, IN MY HUMBLE OPINION, most of these people that, in fact, are medicated are still "sane" enough to know what they are signing and are able to make sound decisions.

I volunteered for several years at a 1/2 way house for women, so I have extensive experience with those afflicted with that disease (also considered a mental illness according to the Medical Journal DM IV)

But what I find MOST perplexing is that the REHAB is allowing it. They don't usually encourage any type of major decisions like that while detoxing. They usually like the brain to clear (the fog to clear.)

This is not a laughing matter and certainly not something to joke about so I request that if people feel compelled to respond with a flip comment, that you restrain yourself. I fail to see the humor.

PS I didn't pursue the field because there was absolutely NO money in it and it takes the patience of a saint. My patience level is pretty good-yeah okay-except when you see years of people dying, in deep despair and going through calamity after calamity only to keep repeating self destructive behavior. It's heartbreaking.

I am not a doctor, psychiatrist or anything of the sort. These are all my personal opinions based on my own experiences and book knowledge.

So again, please let me know!

Reply by LindaD/NJ on 1/6/12 11:21am
Msg #408364

Re: Hi Linda! I'm curious to know what the outcome on this is..

Hey Girl! Don't know if I will ever get the outcome of this one. Since the last Pshyco ward visit I said no more of these closings. PERIOD. I feel uncomfortable now and would worry that I may be involved in some sort of suit in the future. I can't take that chance, and do not want to. I also worked in a field that dealt with alot of metally ill people. Police station. The situation here is she is STILL in REHAB, on medication to quell her addictions which is mind altering. Although she could be the most pleasant person in the world and quite coherent she is still on mind altering meds and IN rehab. She could normally be Cruella Devill (sp?) Get a POA or get an attorney to do it. As we know, we get thrown under the bus for lesser things. And no one would give it a second thought. The bottom line is I felt unconfortable when I heard she was in rehab and if I feel uncomfortable I will not do it so I didn't.

Reply by jba/fl on 1/6/12 12:22pm
Msg #408370

Re: Hi Linda! I'm curious to know what the outcome on this is..

So, you never did contact her counselor? Because she is in rehab does not automatically mean she is psycho, psychotic or even on drugs of any kind.

Counseling - just being listened to to gain insight as to the 'whys' of the behavior. Hubby said she was doing great - she just may have been fine. That counselor could have relieved your mind perhaps.



Reply by LindaD/NJ on 1/6/12 12:26pm
Msg #408372

Let me revise my question, how many of you would have taken

this closing. Or, would you have taken this closing, given this situation?

Reply by Lee/AR on 1/6/12 1:03pm
Msg #408376

Re: Let me revise my question, how many of you would have taken

With a guarantee of full fee regardless of outcome because hiring entity knows the circumstances, yeah, I'd have taken it, called the counselor to find out 'whatever' and, assuming that conversation was not discouraging (as in, she's out of her gourd or heavily sedated), would have gone and seen for myself and make the judgement call on site.

Reply by jba/fl on 1/6/12 1:10pm
Msg #408378

Ditto, Lee. But, did you ever call counselor?Answer that.

Or did you just ask a bunch of notaries hanging around the water cooler and then decide?

Reply by CJ on 1/6/12 1:04pm
Msg #408377

My 2 cents.

I have been to signings where - Surprise! - one of the parties is not competent (Usually elderly, but it has happened more than once). I talk to them and they ramble or something and I feel suspicous that they have no idea what is going on. But the OTHER people want or need the person to sign so everyone says, "Oh yes! He is completely competent!" I don't go by their opnion, I go by MY opinon. I don't think talking to a person, a doctor, or a relative is a good idea to judge competency. YOU need to know.

If you go to court, and you put your hand on the Bible, do you think the attorney is going to ask you if someone TOLD you they were competent? No, they are going to ask you if YOU thought they were competent.

Reply by CJ on 1/6/12 1:18pm
Msg #408379

Re: My 2 cents.

I've even been at signings where the loan officer (or some other important person) was there and they also insisted the person was competent. I don't want to be a party to any nonsense. Part of the job of a notary is to stop stuff like this from happening.

If it were me, I would talk to the counselor on the phone, and just let them know nicely that if when you get them, and the person is not competent, it is illegal for your to sign them.

Reply by GOLDGIRL/CA on 1/6/12 1:35pm
Msg #408381

It should be simpler...

"If you go to court, and you put your hand on the Bible, do you think the attorney is going to ask you if someone TOLD you they were competent? No, they are going to ask you if YOU thought they were competent. "

And the minute an attorney asks you if you thought your signer was competent, opposing counsel will likely say notaries are not qualified to nor are in the business of determining compentency. Which is true. This area is better left to the "experts" (whoever they are) and it's certainly not us everyday notaries. Any first year law student could shred a notary to confetti over how he/she "determined competency."

In any case, I thought we'd pretty much laid this competency thing to rest in previous discussions. We judge signers on: Do they know what they are signing and are they doing so willingly. The determining factor is not that somebody can tell us the name of the president, wave two fingers in front of our face, charm us with political rants or pass whatever arbitrary "tests" we might think to administer. Instead of asking them what day it is, ask them to explain the contents of the document they are signing. Then go from there. It doesn't matter how many hyperventilating relatives are assuring you Grandpa is at the peak of his game. If Grandpa can't tell you the basics of what he's doing, then it's likely the family needs to get guardianship/conservatorship/whatever ... or move on to the next notary...

Reply by LindaD/NJ on 1/6/12 1:42pm
Msg #408382

I am seeing that it is up to the individual notary. If they

want to take the signing or not.

Reply by Carolyn Bodley on 1/6/12 2:37pm
Msg #408389

Well excuse me ...

if you don't like my presidential test. At least I base my competency decision on speaking to the individual PERSONALLY and not to some counselor by telephone, or as said in another post by making my decision with the water cooler advice given here. Advice is like a particular part of the body -- everyone has one. Doesn't mean it is right.

If the hyperventilating relatives statement is also directed to me, no one was hyperventilating and no one was forcing the man to sign ANYTHING. He knew exactly what he was doing, what the documents contained, what the documents meant and what he was signing. I never mentioned anything about guardianship, so don't be trying to read into my post that the relatives were trying to convince me that ol' Gramps was at the peak of his game. This old man was a wonderful man. I met with and visited him two more times getting his affairs in order before he died. In fact, I was lucky enough to be at his bedside saying my goodbye while he held my hand along with his family members. Even in dying, he was competent!

Reply by BrendaTx on 1/6/12 9:07pm
Msg #408413

I don't know what your legal background is,

...but based on seven years of observance in this forum, I'd put Carolyn's legal expertise in more than one area of practice as a paralegal/legal assistant against most 5-10 year (or more) lawyers.

Frankly, I don't like to deal with competency issues and I avoid them. If Carolyn's way includes asking how many producing teats there are on a boar hog, I suggest that there is merit to the question.

Please enlighten us on what your experience is with guardianships and conservatorships. An office that I have worked in have been involved with many. The office specialized in them.

In one particular instance the grandmother was giving away money and buying sports cars for a grandson that wrecked one after another. The concern that brought some of the family members to the lawyer for a temporary guardianship was that Mom was putting flour down on her floors every night to get foot imprints of the dozen or so male prostitutes she was certain had taken up residence in her attic. Their comings and goings kept her up all night. Her house and driveway were covered in flour. In spite of those imaginary prostitutes, the flour, and medical expert opinions, the judge talked to her and decided that she was fully competent to manage her affairs. Where I am from, that's how real court cases go.

Reply by HisHughness on 1/6/12 9:34pm
Msg #408416

So, should we assume the judge was a messy baker, too? n/m

Reply by jba/fl on 1/6/12 10:07pm
Msg #408418

Noooo - there is no evidence of such. n/m

Reply by BrendaTx on 1/7/12 10:03am
Msg #408432

You should not assume that, but his wife would concur.

He drove her crazy with his baking, cooking, cleaning airplane parts in her kitchen sink, and the piles of cassette tapes on which he dictated his memoirs.

Reply by GOLDGIRL/CA on 1/6/12 11:11pm
Msg #408422

But was the judge competent ...?

I suppose asking someone how many producing teats there are on a boar hog is as good a question as any. But it won't do any good after Grandpa has signed over everything to Cousin Jimmie in a POA ... when perhaps he didn't understand exactly what he was doing. Notary: "Yep, your honor, that man was sharp as a pushpin til the day he died. Whenever I asked him how many teats there were on a boar hog, he sure as heck knew. I just never asked him if he knew what he was signing."

Anyway, I'm with you about avoiding competency issues if at all possible ... and I'm sure there are notaries with lots of experience in this regard and are competent themselves to judge these matters if they have to ... but I'm certainly not one of them. Especially after the flour judge story!

As far as guardianships and conservatorships go, I'm just a simple notary and don't know how they actually work. That would be up to the family and the courts ... although I have notarized the signatures of family members who hold those positions.

Reply by CJ on 1/6/12 11:58pm
Msg #408424

You know when you talk to someone . . .

Everyone talks to people all the time: on the street, standing in line, homeless people, etc. and sometimes you know that this person just isn't all there. They don't make sense, they ramble, they don't seem to be understanding what you are saying, etc.

I went to a reverse mortgage, and the guy was friendly, but rambling. He was not even sure why I was there and what the papers were about. I asked him if he knew what a reverse mortgage was. He said they explained it to him, but he didn't understand them. I asked if he had the phone interview with the counselor, and he said he did, but he couldn't remember what they said. I talked with him a little more, and I realized he could not remember what he just told me 5 minutes ago. I called my people and said I did not feel comfortable signing the guy.

About 15 years ago, my boyfriend dumped me and I was devistated. I told my therapist that I wanted to kill myself (big mistake), and she had me taken to the hospital and put on a suicide watch. They went from bed to bed and asked people things like who the governor was. I did not know who the governor was because I didn't pay attention to the news (I do NOW!). I listened to the other people's answers so I could answer correctly when they got to me. I was totally menally competent, except that I was devistated about my boyfriend. (I am WAY over him now, and very happily married to a much better guy.)

Reply by HisHughness on 1/7/12 2:06am
Msg #408427

Re: You know when you talk to someone . . .

***About 15 years ago, my boyfriend dumped me and I was devistated. I told my therapist that I wanted to kill myself***

Geez. Howcum I always drew the ones who wanted to kill ME when I dumped 'em?

Reply by CJ on 1/7/12 4:22pm
Msg #408445

Hi Hugh - I figured that as long as I was going . . .

I was going to take him with me.

I didn't care if I burned in hell, as long as he was burning there too, I was going to be happy. Now I just light a black candle for him and pray that his car gets stuck on the railroad tracks. (Then they can't trace it to me.)

Reply by HisHughness on 1/7/12 4:32pm
Msg #408446

Actually, if the truth be told...

...none of them wanted to kill me after our breakup. They had all reached that conclusion long before we split.

Reply by Carolyn Bodley on 1/7/12 6:35pm
Msg #408447

Re: I don't know what your legal background is,

Brenda, thanks for the pat of approval! Quite honestly, I don't know how much of my competency level has to do with my legal background or just a sixth or seventh sense and ability to make a judgment call on my own -- a trait, no doubt I inherited from my Dad which you will see below. More importantly just by talking with people, you can learn so much about them. Notice I said talk "with" and not "to" people.

I would never call a counselor, nurse, spouse, etc. on the phone (or even meet with them in person) to ask about someone else's competency level. I want to make the decision on MY own. I enjoy visiting nursing homes and offering my notary services. There are some, not all, that should never have been admitted to a home. Family members put them there -- out of sight, out of mind -- so they wouldn't have to be responsible for them. It's a crying shame. These people are so intelligent and can tell stories -- some are yarns, I'm sure -- but they are the most interesting people. Some of their minds are not good, and I even wouldn't even question their competency, because it's just not there. It doesn't mean that they are bad and certainly don't deserve to live the rest of their life locked away and lonely.

I hold no medical degree, so I just looked up the real meaning of "competent" -- describes a person or thing that is qualified to do something or adequate for a specific purpose (adjective). Hmmmm, that definitition right there certainly opens the door wide open when it comes to the competency of some notaries and/or signing agents who have no business performing sgnings or notarizations because they are not qualified for the job.

The flour grandmother brought a smile to my face. My Dad had an 8th grade education, but he was the smartest person I have ever had the honor of knowing. He had the same 6th or 7th sense that I have and he was a good judge of character. One of the reasons he was so intelligent was because he had common sense -- something else I got from him. Sadly, I believe the Internet is making common sense a thing of the past. Growing up we were not wealthy, but I can't remember going without anything. We didn't have a lot of food, but we never went hungry. If you put something on your plate, you had better eat it though -- even if it meant sitting at the table for hours until you did. I don't know if growing up during the depression made Dad like he was -- but what Dad had was his -- no one asked to borrow it or use it -- and he was not a borrower either. If our vehicle broke down, we walked until we had money to get it fixed. He would never ask to borrower someone's car, and no one would ever ask to borrow his car or any other thing he owned. There would always be hard candy or peanuts in the candy dish. People would visit and Dad would never say anything to them when they would reach and grab some. But just as soon as you (even me once I moved out) went to the bathroom or outside and came back, the candy or peanuts would no longer be sitting out. He would have hid them -- because they were his peanuts and candy. After he died, I was going through dresser drawers and his closet and lo and behold, I found several stashes of candy and peanuts, among other things that he figured didn't belong to anyone but him. I suppose many notaries/signing agents would have him locked away in the loony (sp?) bin or would have said he was not of sound mind or competent. THEY WOULD HAVE BEEN WRONG.

Reply by BrendaTx on 1/7/12 9:12pm
Msg #408450

Re: I don't know what your legal background is,

Common sense. That's it. I admire you for wading off into the competency issue. The truth is that we should all be willing to take our turns at it because notaries are needed in those situations. I'm not one to talk because I've avoided most of them, but I have picked up a stack of documents off of a lawyer's desk, grabbed a student worker to be a witness and gone to a bedside where hospice workers were. Tough job. I admire you for doing it. The signers are so grateful. Just remembering one lady's gratefulness right now is making me feel pretty bad about avoiding these situations right now.

There are a lot of references to legal situations and courtrooms on NR and how a notary will be grilled on the stand. I worked as a courthouse floater handling the desks of judges' assistants when they had sick kids, went on vacation, or took leaves of absence and I saw a lot of courtroom action. Later, I took a job in one of those John Grisham kinds of southern fried law offices where the courthouse is a two block walk and there is at least one dog under a desk, an office romance or two, and a country lawyer trying a capital murder case. I've been the legal assistant to a lawyer with a perpetually bad back and I've presented my share of motions for continuance to frowning judges. Legal assistants took turns sitting in on big cases that went on down the street and many of our own contested probate cases, a capital murder case that makes me chilled to the bone to this day, and guardianships like the grandmother with the flour. I have had the good fortune to watch Racehorse Haynes free a murderess and set a thief free after draining money off of a non-profit organization. Even he does not create the scripted drama that one might see on tv.

==========
For those of you who are not Texas, Racehorse Haynes is a lawyer in Houston who has been colorfully depicted in movies and true crime books for representing wealthy clients who most sensible people believed were guilty. Very few were found guilty. At age 80 he was in my town a couple of years ago representing a client. He still practices law.

One of his tricks in the days before courthouses were no smoking zones was to put a paper clip into the end of his cigarette. He would light up and sit at the defense table with the cigarette in his mouth while the prosecution had its best witness on the stand. The ashes grew longer and longer supported by the paper clip. The jury was unable to focus on the testimony at hand for watching the cigarette burn and waiting for the ashes to fall.

He is famous for his synopsis of "plea in the alternative".

"Say you sue me because you say my dog bit you. Well, now this is my defense:
My dog doesn't bite.
And second, in the alternative, my dog was tied up that night.
And third, I don't believe you really got bit.
And fourth, I don't have a dog."

Reply by BrendaTx on 1/7/12 9:13pm
Msg #408451

by the way, beautiful explanation of your

dad's personality, experiences, and his competency. I love the candy dish stories.

Reply by Carolyn Bodley on 1/8/12 12:24pm
Msg #408468

Re: by the way, beautiful explanation of your

My Grandma died when she was 98, still living in her own house and taking care of herself. Twice she walked out of the hospital and walked home -- once when she was 83 and once in her early 90's. No need to question her competency -- when she was 83 the doctor told her that she was dying -- in her own words, she wasn't about ready to die -- she lived another 15 years. The second time, they brought her some kind of soup that she didn't like -- incompetent?--no, she was hungry so she walked home so she could cook herself something to eat.

Reply by jba/fl on 1/8/12 9:24pm
Msg #408493

That, Carolyn, is a true display of gumption by your grandma

I hope I can and will do the same thing if they feed me poorly.

Love your stories. Thank you.

Reply by BrendaTx on 1/9/12 6:06am
Msg #408496

Like the stories, too. :) n/m


 
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