You are absolutely correct that a POA is active so long as the individual is alive. I think i may be the only responder who addressed a situation where the individual who was supposed to sign a POA was at death’s door. Of course nothing happened there, except to educate the spouse and mother about the process. In those instances where I address a bedside signing, the individual may be gravely ill or about to undergo serious surgery, but not necessarily dying (even in hospice). While they are incapacitated they need someone to handle their affairs and/or have access to their finances. There are myriad other reasons why I may be called to witness a POA at bedside. Mine is not to reason why, I simply assess the situation and act accordingly. Just for clarity.
You have received some good suggestions here. I think you made the right call. For future reference, I ALWAYS tell the person who contacted me over the phone that the signer will need to be able to answer some basic questions for me to determine whether they are competent to sign and that decision will be made solely at my discretion. I also inform them my trip fee is due regardless of whether the document gets executed. Unfortunately, I have had quite a number of family members wait until it is too late and then hope they can convince the notary to execute the POA. I have found open and direct communication BEFORE the appointment goes a long way to keeping expectations in proper perspective.
As has been discussed, competence is something that can only be decided by the courts, and then generally in answer to a challenge. A similar principle applies to the validity of signatures underlying almost all notary acts.
In situations like this, it’s always a good idea for the notary to follow their best judgment.
If I felt there was duress or undue influence, my recourse is limited to refusing to walking away.
However, there is a flip side to this - a terminal patient has limited time to make arrangements.
I generally hold myself to the standard of reasonable doubt - that is, doubt where there is a reason to have it.
Generally, one must take people at their word. If the person answers yes, even if they looked to another person at each question, we must respect that; they could be just looking for ‘moral support’. We can demand a verbal ‘yes’ or ‘no’ vs. a head nod, and an explicit answer to any questions. If they’re just parroting someone else, the decision becomes more murky.
I will generally ask questions (e.g.: month, day of week, POTUS’s name, names of persons present, etc..) that show alertness and orientation (the same kind of tests given by paramedics after trauma, to determine brain injury).
If we see any indications that dispute competence, we need to determine if the action merits a ‘no go’ or is more benign (e.g.: momentary confusion). I will make this clear before driving to the location. After all, I forget words and names from time to time. I’ve only done a few (2-3) over the last 10 years, but a clear policy is important.
In terminal PoA cases, I generally will not notarize unless they give me explicit permission to video the process (they can give permission on the video itself). This is for their protection as much as mine.
Regardless, I go by the basic rule with all PoA’s - DOCUMENT. DOCUMENT. DOCUMENT.
Hope this is helpful.
HWB.
You handled the situation appropriately by denying notarization in the given circumstances. Notaries are responsible for ensuring that the person signing the document (the principal) is competent, willing, and aware of what they are signing. In Texas, as in many other states, notaries have a legal and ethical responsibility to ensure that the signer is mentally competent and acting of their own free will.
I would have done the same. We aren’t allowed to notarize anything that someone is coerced into signing.
I just had this scenario this weekend. And yes, I had everyone leave the room except for the witnesses and I was fortunate that her preacher and his wife and another nonfamily member was present. I used the preacher and other male to stay with me while I talked to this woman. She could speak…hard to understand but she smiled and grinned and was coherent. Very weak but was able to tell me she wanted her daughter to take care of everything…she was a good girl. Daughter turned out to be an attorney! Preacher was actually friends with her son who was a deacon at his church but was also in agreement that the daughter was a great person. I mean it was the perfect scenario. She was too weak to sign her name so I asked her if she could make an X for me and she smiled and said yes. We got it completed. Sweetheart of a lady.
In WA, there’s a rule that allows a notary to sign for someone with infirmity who cannot sign. I signed for a blind lady using that. it’s very specific about how you have to sign. But it’s there.
You did the right thing. Doesn’t matter what his mother or stepdad wanted to happen that day. If the signer is not able to communicate with you satisfactorily and of his own free will, it’s best to walk away and do no harm. I’ve been a notary for almost 28 years and there have been several occasions where I’ve had to decline notarizing documents for this very reason. I’ve had family members arguing with me about “getting” power of attorney and I simply had to explain to them…if the signer is not able to communicate to me that they are doing this under their own free will and that they’re not being forced or coerced, then I’m not notarizing anything. You did good!
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