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Posted by NVLSlady/VA on 10/16/20 12:21pm
Is anybody out there??
I'm sure these guidelines have been posted in the past but wanted to share the highlights of my response to a TC regarding a decision to decline a signing for a potentially incapable Principal (see thread directly below!)
Feel free to use my letter and modify to your circumstances. Here goes:
"Briefly I wanted to explain the "red flags" (which ethics and need to err on the side of Caution)* leading to my decision not to handle this assignment, in which not just an "elderly" signer, but one who may be potentially cognitively impaired is involved.
Since I'm not an attorney or healthcare professional, I deemed it best to limit my observations & "direction," and defer to those better qualified than myself. According to _________, the signer's short term memory is gone but she is otherwise fully cognizant, therefore able to converse with notary directly. It was Unusual to not be provided signer's direct contact info, thereby limiting the time to assess level of communication and personally determine what assistance, if any would be needed.
Feel free to contact me with any questions..."
One of a notary’s basic duties is to evaluate a signer’s awareness and willingness to sign. This applies to signer's overall awareness of his environment at the present moment, as well as awareness of the contents of the document, AND of his not being unduly influenced.
Guided by the principle that a notary has an ethical obligation to screen for mental competence, he or she is required by law to refuse a notarization if the signer lacks awareness of the significance of the transaction or what is in the document.
Other states may not have laws with specific guidelines but do recommend that notaries follow business best practices about screening their signers for awareness and willingness to sign. This screening involves asking questions and observing the way a signer communicates to get a better idea of his/her mental state.
For someone who is cognitively impaired, awareness may be an issue. If the principal cannot answer questions about the document or basic questions about their surroundings, or if they appear confused or are unable to communicate clearly, this indicates a potential problem.
Steps a notary can take to gauge awareness:
1. Ask to speak to the principal alone. Talk about non-personal matters (the weather or weekend plans, small talk, etc.) to determine how well the signer communicates and thinks.
2. Ask the signer to briefly explain the purpose of the document(s) he or she is signing.
*Indications That the Principal is Not Competent (red flags):
The signer is unable to answer the notary’s questions or is unresponsive.
The signer displays signs of confusion, disorientation or agitation.
The signer cannot explain the purpose of the document or why they are signing it.
The signer repeatedly asks questions about the notarization or needs to be reminded of what they are doing.
If a notary deems that a principal is not willing, aware or able to communicate coherently, he or she will likely refuse to notarize the document(s) in question. The Notary Public Code of Professional Responsibility of 2020 published by the National Notary Association states that a “notary shall not perform a notarial act if the notary has a reasonable belief which can be articulated that the principal or witness identifying the principal, if any, does not have the mental capacity to execute the notarial act.”
Michael Lewis (NNA)
I picked out pertinent points from his article, and of course, did some copy editing of my own!
P.S. Awake, Alert & Oriented x4 (A&Ox4) means the patient is alert and oriented to person, place, time, situation. Alertness is a global observation of the level of consciousness ranging from fully awake and alert to comatose.