I have a question about POAs and signers competence. I am located in Texas and was asked by a client if I could notarize a durable POA and Medical POA. I went to the clients house and began the notarization process. The two unrelated (POSSIBLY uninterested) witnesses were there too. As we were going through the process, it began to dawn on me that the signer (who was terminally ill) seemed also not to be mentally competent (hardly speaking, no eye-contact, every time I asked him a question, he turned to his mom for guidance). I asked if he knew what he was signing and he just nodded his head, not looking at me or anyone). The step dad was there too, just watching.
As we were going through the process, I also noticed that the step dad threw an inflated ball at the signer (suspected to be mentally incompetent) to which the signer just took it. I was looking for these potential red flags and finally I was straight forward with the signers mother (potential attorney-in-fact).
I told the woman (signers mother) and the witnesses that I was not comfortable with notarizing the documents as the principal did not seem mentally competent AT ALL.
I am still gaining notary experience and this is the first time I have had to deny notarization. How should this situation have been handled in your opinion? Was I right or wrong to deny notarization under these circumstances?
Without being there to witness for myself, it sounds like you made the right decision. Im glad I never personally had to make that decision in over 4 years of notary work. I usually try to be direct with my questions and flat out ask if theu know why we are there. Once i got a no to it being asked as a vague what are we signing. Once i said do you want your daughter to be your POA and control XY AND Z she quickly perked and said oh yeah, didnt realize that was today. So yes, if you could only get a nod with no eyes and a crappy POS stepfather, then i wouldâve pulled out also.
If I believe that it would be inappropriate to proceed with the notarization process, Iâll politely ask to be excused for a moment while making direct eye contact with the hiring person & motion for them to come with me.
Moving away from the âpressure cookerâ scene will be of great support to you while expressing your concerns about proceeding & subsequent refusal.
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Many years ago I instituted a policy that anytime Iâm notarizing a Power of Attorney [POA] document - upon initial arrival to meet with the signer, I quickly scan the room while looking briefly at each person present & then politely ask the following:
âIâm wondering if the signer & I could have a few moments alone together before we begin working on the document(s), please?â I do this while simultaneously holding the handle on the doorknob in preparation for closing the door (leaving the other attendees outside the signing room).
Iâll then introduce myself to the potential signer.
Ask them to tell me their name.
Ask for their ID.
Ask how things are going.
Ask how theyâre feeling today.
While monitoring their verbal & non-verbal communication, I then ask them about:
The weather.
The date.
The current President.
To please explain why Iâm there.
Ask if they know what documents we are preparing to work on.
Etc.
By this point in time, youâll have a fairly good impression of the cognizance & coherence of the potential signer & the scenario, etc.
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NOTE: The reason I ask for a moment alone with the signer is to ensure there are no âsignalsâ being passed OR âapprovalâ being sought for the actions/process about to take place.
That 's what I doâŠthen carry on a chat with the principal. Then, when all are back in the room, I also confirm that they want so-and-so to be named to handle their affairs. I did have one who was signing to name his neighbor as his agentâŠI asked âand youâd like Mr. Smith here to be your agent and handle your affairs, correct?â. The gentleman looked up at the proposed agent and back at me and said " I don"t even know him!". Case closed.
One small warningâŠsit with the person for a bit and chatâŠnot a couple questions and proceedâŠI say this from personal experience. My mother had dementia, but if you sat with her for about ten minutes you would never know. She was okay for the first 10-15 minutesâŠand then things would start falling apart for her. So take your time.
Good suggestions on these replies. I signed many POAs and Wills during COVID during 2020. I did walk away from signings mainly during this period of time usually for people with dementia being coerced, people recovering from COVID not mentally recovered and getting confused. Other situations were people recovering from head trauma accidents. Conversations with these people were having current medical issues with being in the present. Felt following through with notarization was unethical.
Those of us who have been doing this for awhile have probably come upon a situation similar to this at least once. I had a situation almost exactly like this last summer. Just from the telephone contact by the spouse I could tell this was going to be an iffy situation at best. Once I arrived and saw the client, It was clear that the person was in the active process of dying.
These are the things I generally do for All POA client requests:
After youâve introduced yourself and told them your title, Ask the individual to explain to you the purpose for which they believe you are present.
If they confirm that you are being requested to notarize a POA for them; ask them if they are aware that the person they appoint to fill that role will be able to act on their behalf in all powers given to them if the client is deemed to be unable to do so on their own behalf (verbal response is required)
Ask them to give you the name of the individual to whom they are assigning such powers (should be the person already printed or being printed on the document - verbal response required)
Ask them if it is their intent to give over these powers by signing this document, and they are doing so of their own free will without coercion, threat or intimidation â they must verbally respond affirmatively.
I have all witnesses available while I ask these questions. I do not allow anyone else in the room to respond or expand on the response of the client. I have done bedside POAs as well. I will ask when I arrive when the client has had their last dose of medication. If I am at a medical or nursing facility I require that a medical staff confirm last dosing and I ask then assess for myself whether I believe the client is able to sign documents with full understanding and coherence. Then and only then will I notarize a POA at bedside. Iâve declined a couple.
@Tisino Thank You for including this segment of queries, which I pose to the person giving the POA/Principal AFTER I invite the person receiving the POA authority, the Witnesses, & family members back into the room.
The present scenario the signer is within definitively adds steps to my process; i.e., if the Principal is in a Retirement Center, on Hospice, in a medical facility, etc.
One other thing, the POA is the one document that I examine its contents. The name of the beneficiary/transferee must be identified. Each of the powers the client is assigning must be marked/initialed. I require that each page of the document be initialed before I will notarize. I do not notarize any document where this information is blank/missing.
Thank for for the input. Yes, it was a very strange experience, but experience nonetheless! Yeah, the witnesses also seemed a little sketchy like they were not related to the signer, but I suspected that they may have had an interestâŠwho knows!
I appreciate the thorough response, @cNsa5. That seems like a really good strategy! I am still curious, though. If the signer is not mentally competent to make medical/business decisions, wouldnât they eventually need a POA assigned? This is where I was also caught up.
Wow, thank you for the very informative response @Tisino. You make some very good points that I would have never considered. I will definitely take your advice into account next time I am assigned a POA.
That would have to be determined by the courts, where a guardianship or conservatorship would be established. If the signer is not mentally competent, a family member or someone would have to petition the appropriate court for it. Usually, the courts require doctorâs certification of the mental incompetence.
All of that said, the initial signer, if mentally incompetent, would not be able to sign a POA.
Andrew we live in a sad world where people donât think about POAâs until end of life decisions have to be made quickly. COVID epidemic pushed people to make these decisions quickly. When I lived in Kitsap County WA, many military personnel would get POAâs prior to shipping out. POAâs are just not people think about. Some medical offices encourage Medical POAâs in advance. Some financial institutions suggest financial POAâs and Wills. Waiting for extreme situations like pandemics makes for family difficulties. Iâm 75 and made sure my paperwork was in order for adult children when I retired but should be addressed earlier if children are involved. Who have you assigned responsibility for your children should something happen to you?? In my mid 30âs before I had cancer surgery made sure paperwork in order for my childrenâs care. Lot of reasons to get personal life in order. Mental health can become an issue at any age. Thank you for being an ethical Notary.
Thank you for your input, it is much appreciated! I am understanding the importance of POAs. Like you mentioned, they should be taken care of at any age, I agree. Being 28 and medically retired from the military, I made sure to take care of my POA/Medical Directive with VA as soon as possible! Although I do not have any kids, my two beloved sisters will inherit anything I have should my time come earlier than expectedâŠ
I walked into this situation one time. I declined to do the notary as the person I needed to do a notary for was clearly not coherent. I think you made the right call.
