Posted by jojo_MN on 7/7/13 12:11am
Msg #475825
Mandated reporting
There has been much discussion with CA AB 477 about mandated reporting for elderly and dependent adults. Does anyone see in the future mandated reporting for any financial fraud/preying?
Just yesterday I did a signing for a structured settlement for an individual that was exchanging her future eleven years monthly payments totaling $133,000 for $7,500. No, that is not a typo. She will be getting just over 5% of what the court ordered payment to her for a medical issue with the other 95% going to this structured settlement service. This is just one example.
I am surprised that there aren't any mandated reporting for us already being that we, as notaries, see much first hand; however, we are not allowed to cross lines and give legal advice to borrowers/clients. In no way am I saying that I want to be mandated to report what we see.
| Reply by Notarysigner on 7/7/13 2:15am
Msg #475827
Without knowing the terms of her settlement it's hard to determine whether it is abuse or not. IMO If she had guaranteed monthly payments for eleven years whether she lived out the eleven year payment cycle or not for example. If she doesn't and maybe terminally ill then who knows.
When I retired I took a 10% cut in my annuity in return for guaranteeing monthly payments into our checking for 15 years whether I lived that long or not. I've been retired 17 years now. I thought it was a wise decision.
So I think you would have to have a plan and we don't know that about the person you mentioned in your post. Interesting post though!
| Reply by VT_Syrup on 7/7/13 6:38am
Msg #475830
Re: Mandated reporting; wearing two or more hats
Many people with state licenses are already mandatory reporters: any kind of health care certification, teachers, law enforcement officers, etc. So many part time notaries, or people involved in these other fields as volunteers, are already mandatory reporters.
| Reply by Notarysigner on 7/7/13 8:04am
Msg #475831
Re: Mandated reporting; wearing two or more hats
True, My wife and two daughter are all teachers
| Reply by desktopfull on 7/7/13 2:31pm
Msg #475847
Scope of a Notary Public
We are supposed to verify by proper ID that the person signing in front of us is the person signing. Just curious as to when our scope of duties extended to reading, interpreting, and discerning whether the person in front of us should sign (or not) a document that they presented to us for notarization. IMHO, this not only crosses the line into UPL, but a broadjump into UPL. As a notary, after verifying Id and asking if the party understands what they are signing and making sure that the document is completely filled out I'll notarized the signature. The info in the document is none of my business, nor will I make it my business. The Nanny/Granola government of CA is once again over reaching and providing no protection to those that they are financially jeopardizing with civil lawsuits.
| Reply by Marian_in_CA on 7/7/13 3:14pm
Msg #475849
Re: Scope of a Notary Public
That's the problem... the text of the bill makes it so that CA notaries are supposed to determine if the signer understand the consequences of a document they are signing. How in the world are we supposed to do that? It's not just reporting suspected financial abuse, which would then require us to read and get involve din the contents of document (which we aren't supposed to do now)... it's making a legal or medical interpretation about one's mental status or capabilities, which is both a medical and/or legal decision, both of which are against the law (practice of law/medicine without a license).
Even under current CA law, we aren't to be doing that.... though some notaries think they should... that's another story.
It's not our job, nor should it be, to make the determination... that's the scary part of this bill. As I noted below, this bill passing would mean some fairly extensive revision to CA notary law/rules, even though they *say* the impact is minimal.
Another thing to realize is that mandated reporters are required by law to undergo mandated reporter training. YUP, folks... MORE educational requirements. This would involve substantial revision to the notary education laws and requirements, too.
...and you know what all that means? Our application and training fees are going to go UP.
| Reply by SharonMN on 7/8/13 10:44am
Msg #475910
Re: Scope of a Notary Public
The law is not requiring that notaries determine whether elder abuse is taking place, any more than a teacher is required to determine whether child abuse is taking place. All it requires is that if you suspect abuse, you report it and let the appropriate authorities take it from there. I'm pleased to see that the bill also mandates that notaries receive training and an easy way to file a report. I think this will make it much easier for a notary that suspects abuse to do the right thing. For example, if someone's caregiver tries to pressure you to notarize a POA, and you refuse to notarize it because the signer appears to be incompetent or coerced, or tells you they don't want to sign the document, or you have knowledge that the signature is forged, you would then report it instead of just leaving and letting the caregiver find another stamp jockey that will do what the caregiver wants.
| Reply by JanetK_CA on 7/8/13 2:42pm
Msg #475943
Re: Scope of a Notary Public
Any training that we receive will likely be superficial, won't make us experts and won't substitute for the fact that we are only with a person for a very short period of time. Information to encourage reporting can be made available without the threat of severe penalties.
The examples you mention seem to be pretty clear cut, situations where, with the right information readily available, I believe most notaries could be encouraged to report anyway. The problem is that most situations aren't that clear cut. Most of the time, in a matter of the few minutes we have with someone, we don't have enough info to make a determination, but someone could later decide that we should have noticed this or that. We live in a very litigious society and the mandatory nature of the proposed bill adds a great deal of liability to what might be an otherwise simple notarization. I believe it puts a burden on us that is unrealistic, with potential liabilities that make it not worth taking a chance.
Also, if a notary decides to report any and every remote possibility, if it turns out there isn't abuse that can still have serious potential negative impact on the family involved - and can be costly to them and the community. There has to be better ways to deal with this issue.
| Reply by Venita Peyton on 7/7/13 8:16am
Msg #475832
Jojo, I don't do structured settlements. It's not only the elderly who are possibly preyed on. The ones I came across were (in separate cases) for guys who had sustained physical injuries and didn't have much money before the incident. Suddenly with all this new dough they wanted to buy one (or two) new cars, etc., and the structured settlement was another carrot.
I expect they'll be broke in less than 5 years.
| Reply by Linda_H/FL on 7/7/13 8:46am
Msg #475834
Jojo, this scenario may be worth a call to your AG
My only concern here is, as I've said before, many times you just can't save people from themselves. Personally, this $7,500 for $133,000 is pathetic and the cmpany should be ashamed of themselves. And I think this could be considered predatory - they got the hook in and reeled the person in..I find it hard to believe the beneficiary is that stupid (and there's no other nice way to put it).
Yeah, I'd call the AG. But if your luck is like mine, the one time I ever did call them about something (think it was debt resolution and upfront payments) I was told the call had to come from the consumer - they couldn't take a complaint from me as I was not the "victim".
Good luck.
| Reply by 101livescan on 7/7/13 9:10am
Msg #475835
Here's an interesting read for all of us.
http://www.ask.com/wiki/Mandated_reporter
This mandatory reporting legislation has been going on for years, I suspect many states will follow California's lead if this legislation passes.
http://www.denverpost.com/breakingnews/ci_23148138/mandatory-elder-abuse-reporting-bill-heads-colorado-governors
The CO legislation does not include notaries. However, since many notaries are involved with notarizing for senior citizens, it seems logical that legislators want to include us in the list of mandatory reporters going forward.
It will change the face of doing general notary work for seniors. While I don't perform a great deal of GNW, occasionally our local title/escrow companies will ask me to visit a client at their elder's health care facility to notarize documents for sale or encumbrance of a loan on a property. There is usually a relative in attendance to facilitate. I'm not looking forward to becoming a "policing" notary/agent. It opens up all kinds of possibilities for legal system fault finding, culpability and potential lawsuits or simply testifying in courts of law to prosecute wrong doers.
YIKES! Acting as a notary in such volatile, possibly lawsuit lurking circumstances could not only hinder the clients in finding a knowledgeable and completely by the book notary who would be willing to take on such responsibility, but also hinder the numbers of new notaries coming on line to take on this work. Most facilities do not permit their employees to be witnesses in these events. HELLO! They don't want to be named in lawsuits either.
This is a very HOT piece of legislation, in my mind. I'm not looking forward to how this impacts notaries.
As a certified live scan fingerprinting operator, I process the fingerprints for any one who applies for licensure, certification and background check for schools, city, county, state and federal agencies to ensure everyone's background is approved for the professional work, care giving or volunteer position they seek to perform. Including notaries public.
It doesn't matter I someone has had their "criminal record expunged", guess what, it's like DNA, never changes, never goes away from the DOJ/FBI database. For CA notaries, do you realize that the fingerprint in your journal is DNA? Not just the print is recorded but DNA forever.
I believe that the State of CA, and perhaps other states to follow, is fixed on notaries being included in the sweep of people to be mandatory reporters, making us accountable to report any verbal, physical or financial abuse of our growing senior citizen population.
| Reply by Lee/AR on 7/7/13 9:52am
Msg #475837
What worries me (tho' I don't have a dog in this fight)...
is that I have several concerns. Quoting from above link: "Since mandatory reports were required, reports have increased exponentially… with low substation rates.” (think they mean 'substantiation') One, if a person is accused of something, but it can't be substantiated, are they going to sue the Notary for a false accusation? Is there anything to protect the 'accuser' from this? 2. Failing to report.... uh...well, gee, how well do we know the person, understand the situation in the brief time we're with them. Obvious coercion--or the signer saying "No" is one thing, but the more subtle things that MIGHT cause you to report/not report--could come back much later and bite you. False accusation or you should have reported it--you're between a rock and a hard place no matter what you do. As for me--b'bye this type of notarization. Unintended consequences, for sure.
| Reply by Sylvia_FL on 7/7/13 10:08am
Msg #475838
Re: What worries me (tho' I don't have a dog in this fight)...
it's like if you suspect child abuse and you call the hotline and report it. You are not saying there is abuse just that you suspect there might be. Your name is usually kept confidential.
There was one of the judge shows a while ago where a couple were suing a day care center for reporting them for suspected child abuse and they weren't abusing the child, the child had a little known medical condition that the parents hadn't notified the day care about. The judge said the day care center did what they were legally required to do, report it so it could be investigated.
I would have no problem reporting suspected abuse.
| Reply by Lee/AR on 7/7/13 10:48am
Msg #475840
Re: What worries me (tho' I don't have a dog in this fight)...
The day care center still got sued and, even tho' they won, they still had to defend it in court. Think 'lawsuit protection' for any mandatory-reporter OUGHT to be in any such law. "Doing the right thing" when it's a mandatory-report should not open the door for a potential lawsuit.
| Reply by Sylvia_FL on 7/7/13 12:28pm
Msg #475843
Re: What worries me (tho' I don't have a dog in this fight)...
It shouldn't. But people can be sue happy these days, and just about any action can be turned into a potential lawsuit.
| Reply by Roger_OH on 7/7/13 1:33pm
Msg #475844
Every structured settlement I've done...
has included a document that the recipient is required to sign, stating that they have discussed their situation with their attorney or financial advisor, and they must show the advisor's contact info. So they were not doing this totally blindly, without some outside advice.
I don't know what the person's circumstances are, nor do I want to know. I'm not there to make a judgement on their financial situation, or why they are doing this type of arrangement. I'm there to perform a requested notarization, and to complete the required notary elements; the document content is not my concern.
| Reply by Marian_in_CA on 7/7/13 3:05pm
Msg #475848
Mandated reporters are NOT anonymous...
Anyone can report suspected abuse of any kind to the proper authorities. Those reports may be confidential.
Under the Mandated report law, though, mandated reporters cannot be anonymous. They are generally protected from being sued, though, provided they make a report in good faith. Of course, they could also be prosecuted if they *should* have made a report bu didn't. It's a sticky situation.
Mandated reporting, on its face, is a good idea...but the implementation of it, especially for notaries in CA is a very bad idea. In fact, it will likely end up requiring changes to notary laws and procedures. To me, that's the bigger issue... the law makers aren't being made aware of how making a notary a mandated reported will require a lot of changes to notary law or procedure and would end up with a lot of notaries stepping WAY over their bounds to start nosing in to people's business where they don't belong.
I've been editing down the letter I'm sending out to state senators about this.
Here's a part of it... still in very rough draft. And this ins only one of about 8 or 9 points I'm making in opposition to this bill.
"The text of the bill indicates that notaries should not perform a notarial act if “the elder or dependent adult has a demeanor that causes the notary public to have a compelling doubt about whether the elder or dependent adult understands the consequences of the transaction or document requiring the notarial act.”
This would mean that we are going to have to ask or delve in to the personal health issues of our signers, not just for senior or dependent adults, but all document signers – in order to be both fair to all, but also because we may not be able to know if somebody is a dependent adult or not. Notaries are not generally doctors, mental health professionals or lawyers and do not have the proper training or experience to know if a person truly understands the consequences of a transaction. To do this would mean getting involved in the contents of the document, which is in direct conflict to what we are told in our handbooks. This would also eliminate our ability to notarize documents in a foreign language. If we cannot understand the content of a document ourselves, how can we be expected to determine of the signer understand the consequences of whatever transactions is described in that document?
I believe that it’s important to point out that a notarization does not make a document “legal” or “official” by any means. All it does is verify and witness a signature or an oath. If a person’s signature is illegal, for whatever reason, prior to the notarization, it will still be illegal afterward. That determination should be left to the courts and other legal and medical professionals.
California Notary law tells us that, as Notaries, we are not allowed to determine or certify the representative capacity of the signer of a document (CA Civil Code 1189c). This includes dependent adults who may be under a conservatorship or who may not be legally authorized to enter in to contracts or other agreements without trustee or court approval. A person such as this may be perfectly lucid and have proper ID. This person takes some paperwork to a notary, has their signature notarized and leaves. The Notary, by state law, has no business delving in that person’s personal or legal right to sign the document. So long as they can communicate, identify themselves and express the nature of the document they’re signing, the Notary had no reason to decline the notarization. And yet, that doesn’t mean the person’s signature is legal or that the document can be enforced because the signer didn’t have the legal authority or capacity to make that decision. "
| Reply by Marian_in_CA on 7/7/13 3:36pm
Msg #475850
Re: Mandated reporters are NOT anonymous...
Let me give an example of a "dependent adult" -- since she's a public figure. Britney Spears. It's pretty well known that this young woman is under a conservatorship. Clearly, she is a dependent adult and is not allowed to make certain decisions or sign certain documents except under certain provisions. Thing is, she's also pretty darn lucid. There are certain things she can do by herself. What if a person in a similar situation brought paperwork to a notary to be notarized. How are we supposed to know if they are a dependent adult or not? How are we supposed to know if they understand the consequences of what they sign? We can't...and it's WAY, WAY outside our job description to be tying to figure that out... and yet the text of the bill is telling us that's exactly what they expect us to do.
Under CA law, it's the signer, NOT the notary who certifies their capacity to sign a document. That's why the state is so strict about the wording we use in our certificates. It's to protect the notary!
By making us mandated reporters, it's going to cause all kinds of trouble... and really, it totally useless because we can (and many of us do) already report suspected abuse.
| Reply by JanetK_CA on 7/7/13 4:22pm
Msg #475853
Re: Mandated reporters are NOT anonymous...
Marian, you make several excellent points, especially that this proposed law could result in radical changes in the entire notarization process. I have one suggestion, though. Our arguments against this bill will be directed to law-makers who have the ability to amend existing law as well as create new laws. Therefore, I don't believe that using current California law as a reference or justification for any particular argument will have any affect. To them, existing law may be irrelevant.
I think we'll have much more impact if our arguments against this bill are supported by real world impact and common sense, as well as "generally accepted principles" or something to that effect, rather than reference to what current legal code says. I believe we should focus on how the changes will affect people in actual practice and what those changes will mean to the general public - and most particularly, the people they profess to want to help by requiring mandated reporting by notaries. Let's talk about those unintended consequences, in as much detail as possible. I strongly agree that having to cross the line into UPL to satisfy these requirements might one of the best arguments, as long as we support that with the reasons for the restrictions on UPL, not just the prohibition itself.
It also occurred to me while reading Marian's post that many of these legislators, much like the general public, don't really understand what is the real function of a notary public, i.e. to be an impartial witness and to identify a signer. I'm going to work on simplifying my letter trying to get to some basic, but clear-cut bullet points. I also want to try to emphasize other ways that this problem might be addressed.
I think we need to keep in mind that we're dealing with politicians who are trying to have an impact on voters (also ignorant about a notary's function), so they're very concerned with image. On the surface, this bill may sound like a good idea to many people, which I believe is the real battle we need to face. If, in addition to pointing out the perils of the proposed law, we can offer suggestions of other ways to help them offer something to their constituents that shows effort and concern and can actually make a positive difference, then maybe we have a better shot at stopping this. I'm not trying to be cynical here, just realistic.
My thought on that is to simply have the SOS add a page to their website notary section with resource materials and contact information for appropriate reporting, so that if we do come across a questionable situation, we don't have to take on a whole research project to know what to do. That would not only help us get informed in advance, it would make it very easy to instantly reach out the right authorities, when appropriate. I think that approach could have an immediate impact, could be done very quickly and would require a minimal, one-time expense, with no ongoing costs to monitor and/or administer new requirements.
After all, the notaries aren't the ones who are committing the abuse they're trying to stop. Why should we be targeted for fines and penalties?
| Reply by Marian_in_CA on 7/7/13 5:00pm
Msg #475856
Re: Mandated reporters are NOT anonymous...
Thanks Janet... yeah... I'm still trying to edit this and make it for the right audience. It's not an easy thing to do. Plus, I'm just too darn wordy.
Though I disagree a little bit about discussing existing laws. Proper analysis of existing laws is important to understand the impact of a new law. Even the most recent analysis from the Sen Judiciary contains 9 points of existing laws -- all of which are "pro" passing the bill. None of existing notary law is discussed at all and certainly not the impact the passing of the bill would have on existing notary law. That's the problem I've got with it. I don't really care so much about the concept of reporting potential abuse. I do it already. I care that this bill will radically alter CA notary law and procedures... and I'm not seeing anyone talk about it.
It the latest Sen Judiciary report, they say the NNA has no voiced any concerns about this. That's not true, I know that they sent an email out in June (I think June) about it, and they put it out on social media, too.
Of course, their position stated, "Instead, the NNA supports strengthening California’s Notary laws to require a Notary to be satisfied that a document signer demonstrates awareness and a willingness to sign before performing the notarization."
Yeah, well... that's exactly what this bill will end up doing. Well, actually... it goes beyond that. The bill specifically states that we are supposed to determine if the 'senior or dependent adult' "understands the consequences of the transaction or document requiring the notarial act." Yeah, well... that might as well extend to EVERY person asking to have their signature notarized because how are we to tell if somebody is a dependent adult rather than somebody high on drugs or an adult that is just plain crazy.... but seemingly lucid? At what point do we draw that line? And why are we supposed to be determining what a person understands or not? Shoot, a lot of people can fake that... including seniors with dementia, seniors who KNOW they have dementia and have practice covering it up? You don't think that happens? It does!
Sadly, in reading the status report, it sounds as if they put a lot of weight in to what the NNA's position is. And yet, I'm not sure the NNA even knows what their position is.
| Reply by JanetK_CA on 7/7/13 5:23pm
Msg #475859
Re: Mandated reporters are NOT anonymous...
"understands the consequences of the transaction or document requiring the notarial act."
Right! That's exactly what we're not allowed to assist with or be responsible for when getting loan docs signed for fear of UPL, yet we're supposed to determine if that is true for someone whose signature we notarize? An impossible standard, IMO. If the law used the same standards for determining "awareness and willingness" that it does for identifying someone, i.e. a lack of evidence to the contrary, I'd have no problem with it and would likely welcome that addition.
Your point is well taken about current notary law, but I believe it would be more effective to deal with how the bill would impact current law as a separate issue, rather than use current law to support other arguments against the bill.
| Reply by Marian_in_CA on 7/7/13 8:32pm
Msg #475872
Re: Mandated reporters are NOT anonymous...
One other thing to consider is this... the fear of prosecution or civil lawsuits and additional related training expenses may result in some notaries resigning their commissions or refusing to renew their commissions. California already has the lowest number of notaries per capita in the nation (2012 National Notary Association Census) and many of these notaries limit their notarial practice to a handful of notarizations for their employers. Since instituting additional background checks and more rules/laws in the last decade, California has lost well over half its commissioned notaries. This potential reduction in service would make it even more difficult for people to find a Notary to help them, especially seniors and those in sensitive situations.
Can you imagine how many of these "I got my commission because my boss made me" notaries who never have any contact with seniors or dependent adults would put up with this additional training that doesn't apply ot them? Or, if their employers refuse to pay for it?
Hey that's great for some of us.... but as saturated as some markets are with notaries, the truth of the matter is that, overall, there simply aren't enough in CA compared to the availability in every other state.
| Reply by Susan Fischer on 7/7/13 10:35pm
Msg #475882
A riviting discussion, and this last point leaps out like a
hot spark that lit the fire under me.
The punitive aspect against what has historically been an indispensable private demonstration of the public trust: the Notary Public; disinterested and impartial witness for the state - the punishment is the problem. Some thoughts:
1. Boomers are aging out, creating an era of the largest transfer of wealth to date. Financial institutions are being successful in blocking reforms in, among other tactics, predatory lending.
2. [gut shot] A CA notary can't even certify capacity of say, Susan Fischer, a single woman, on one hand, but could be held responsible for failing to spot an invisible gun at my head during a Notarization? The "training" is a most suspicious "assurance" - and a mighty good living that creates for the "training" companies, no? Will the NNA offer such "training"?
3. It occurs to me that because the very essence of disinterested and impartial is a cornerstone of the foundation of Notary Law, the additional stone of Mandatory Reporting (of suppositions, assumptions, brief observations...) with draconian penalties relative to any official act creates an insurmountable conflict.
4. From The Beginning of Notarydom, If a Notary has cause, (s)he can decline to Stamp. Why isn't that good enough?
5. The extrapolation of Marian's diminution of availability presents a frightening picture for our populace. If regular, upstanding folks are scared out of what is a noble and necessary avocation to facilitate the Business of Our Daily Lives, who's running our Daily Lives?
And where did the largest transfer of wealth end up?
| Reply by BrendaTx on 7/7/13 9:39pm
Msg #475878
Re: Mandated reporters are NOT anonymous...
*And yet, I'm not sure the NNA even knows what their position is.*
Sorry to hear that...perhaps they are creating a nice set of training courses that will have to be included in next years required education for CA notaries.
Of course, that will be more time and more tuition out of a notary's pocket, but what is really important is that course vendors make plenty of money, right?
I wonder what the NP Administrator in CA is thinking about this one.
| Reply by VT_Syrup on 7/8/13 8:34am
Msg #475900
Re: Mandated reporters are NOT anonymous...
"I wonder what the NP Administrator in CA is thinking about this one." They're probably writing rules so that a physician, teacher, or paramedic who already took mandated reporter training, and also happens to be a notary, will have to take the training over.
| Reply by BrendaTx on 7/8/13 7:23pm
Msg #475980
LOL. n/m
| Reply by MW/VA on 7/8/13 11:06am
Msg #475916
IMO unless someone was there pressing or coercing her to
sign that structured settlement it is not abuse. Poor judgment or desperate circumstances don't have any age discrimination.
| Reply by MW/VA on 7/8/13 11:07am
Msg #475917
Try to remember that we as notaries can't give legal or
financial advise. We're not qualified or licensed in either area.
| Reply by JanelWI on 7/8/13 11:27am
Msg #475919
I refuse these just as I refuse the debt settlement signings. I know what my role is as a notary public, but I am also a business owner. I choose not to be a part of these anymore for ethical and moral reasons. I accepted a structured settlement signing a few years ago and when I got there to notarize, I was stunned at how grotesque the deal was. I did my job and walked away and said, "never again". It may not be technically illegal what these settlement firms are doing, but it certainly qualifies as unethical and predatory in my opinion, and I won't do them.
| Reply by rengel/CA on 7/8/13 3:47pm
Msg #475951
Apples and Oranges
A structured settlement is when you receive a settlement in stages. They usually need to be approved by the court.
What this person is doing is SELLING their structured settlement. Someone is paying them a smaller amount and will be receiving the balance of the structured settlement.
You never know the reasoning of the person selling. They may be in dire need of cash now, they may just want cash now, or they don't really grasp the concept of cash flow.
There are just so many cases of "you can't fix stupid."
My .02
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