Notaries are faced with a variety of special circumstances every now and then such as when the signer is blind, doesn’t speak English, or has a disability, etc. How should they handle? Notaries should make an effort to accommodate them, but should also exercise common sense, reasonable care, and follow the law.
Basically, if notaries do not feel comfortable with the request, they can and should simply, but tactfully, refuse it.
Remember, though, the following:
- Unless you are also a lawyer, you may not give legal advice when you provide notary services. Florida law prohibits notaries public from advising the signer which notarial act is required for his or her document, from preparing legal documents, or from explaining the contents or legal effects of a document. I f you don’t think the signer fully understands the document to be signed, refuse to notarize and advise he or she to seek legal advice.
- Note the special circumstances of the notarization in the notarial certificate and in your journal (see my previous post Best Protection for Notaries Against Lawsuits: Keep Accurate Records!)
Here is what the law in Florida says about notarizing for a person who is mentally incapacitated p.36:
§§117.107(4) and 117.107(5) Fla. Stat.
The law prohibits notaries from notarizing the signature of a person who they know has been adjudicated mentally incapacitated by a court of competent jurisdiction if that notarization pertains to a right that has been removed such as the right to vote, to marry, to execute conveyances of real property, etc.
What if the person is usually mentally competent, but is medicated at the time of the notarization, or what if a family member says the person is “in and out” of lucidity due to Alzheimer’s disease or some other mentally debilitating ailment?
When performing any notarization, you should question the signer to determine that he or she is willing and competent to execute the document. The following suggestions may be helpful:
- You may want to have an impartial witness for the notarization. If you are asked to go to a hospital or nursing home to provide services, check with the patient’s nurse or doctor prior to notarization.
- Talk to the person alone. Ask questions unrelated to the notarization. Ask for his name, home address, and telephone number. You could also engage the person in a conversation about his family, his occupation, a television program, a recent news event, etc.
- Ask the signer to tell you about the document to be notarized. What kind of document do you need to sign? Have you read the document completely? Do you understand the document? Do you need someone to explain the contents of the document to you? Has anyone pressured you to sign this document?
- If you feel the person is mentally competent at the time, proceed. If in doubt, don’t do it!
- If you keep a record of your notarial acts, document the special circumstances of this notarization – even if you must refuse to notarize.
- Have the witness sign your journal
Unfortunately, many people, sadly even some family members, try to take advantage of people with mental disabilities, etc. so notaries should exercise much care; those suggestions above are good ones to assess a person’s understanding capacity. Basically, if the signer shows any sign of confusion or that he or she does not understand the document to be signed, seems to be reluctant or coerced, is not lucid, or has been adjudicated mentally incapacitated by a court of competent jurisdiction, do not notarize and record the even on the journal!
by Alessandra Gomes
On My Way FL Notary S.A.
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