By Kelle Clarke on June 11, 2015
Updated 4-29-21. Notaries are not expected to be medical or psychiatric experts. But you should still pay attention to whether a signer appears aware and willing to conduct business requiring a notarization. In some states this critical evaluation of a person’s awareness of the transaction is a legal requirement.
Assessing a signer’s awareness generally means observing whether the signer is mentally aware enough to understand what’s going on at the time they sign documents. These are the most common situations in which a signer’s awareness may be compromised:
An elderly signer suffering from confusion, dementia or Alzheimer’s.
Heavily medicated signers, including those facing surgery or in hospice care.
Signers who are under the influence of alcohol or narcotics past the point of comprehension.
Assessing Awareness
If you suspect that your signer’s level of awareness may be compromised, there are simple, noninvasive steps you can take to help your consideration:
Introduce Yourself/Explain Your Role: Ease possible tension with a friendly introduction and brief explanation of your role as a signature witness.
Ask Questions: Ask open-ended questions requiring more than “yes” or “no” answers, which will help determine the signer’s coherence. Focus on non-personal topics such as weather, sports, or weekend plans.
Seek Clarification: If you are unsure if a signer understands your questions, you can ask them to tell you the title of the document.
What If Your Signer Lacks Awareness?
If your signer appears confused, disoriented or uncertain, you may be required to refuse the notarization — depending on your state’s laws.
California does not provide guidelines for Notaries to evaluate a signer's awareness. However, Civil Code 1189 does require signers to acknowledge to a Notary that they are the person who signed the document when an acknowledgment is performed. If the signer is unable to clearly communicate this, California Notaries should not proceed with an acknowledgment. Similarly, a California Notary should not complete a jurat if the signer is unable to respond clearly when the oath or affirmation is being administered.
Florida specifically prohibits a Notary from performing a notarization if a signer appears unable to understand the nature of the document at the time of notarization or if the Notary knows the signer has been declared mentally incapacitated by a court with appropriate jurisdiction. Massachusetts, Mississippi and New Mexico do not permit notarizing if the signer appears not to understand what is happening or is unwilling.
In North and South Carolina, the Notary certifies that the signer appears to understand the nature and consequences of the document. Thus, if a signer appears unaware of what they are signing, Notaries in these states should refuse the notarization.
States such as Iowa, Montana, North Dakota, Oregon and West Virginia, which have adopted the Revised Uniform Law on Notarial Acts (RULONA), grant Notaries the authority to refuse to perform a notarization if they are not satisfied that the signer is competent or has the capacity to sign.
Georgia and Rhode Island law also includes this permission, and a Nebraska regulation urges a Notary to refuse to notarize if the Notary reasonably believes the signer does not understand the document. Texas permits Notaries to refuse a notarization if the Notary has reason to believe the signer lacks capacity to understand the document's contents or that the signer is being coerced.
As recommended in Article III-C-2 of The Notary Public Code Of Professional Responsibility, for Notaries in states without specific guidelines the safest course is to refuse to notarize if the Notary has doubts that the signer understands the consequences of the transaction or the document requiring notarization.
After Refusing A Notarization
If you have any concerns about a signer’s awareness, note in your Notary journal the steps you took to determine whether to go through with the notarization.
If you do not keep a journal, you should still document this information in case you are later asked for an explanation.
In the case of an inebriated, sick, or heavily medicated signer, you may offer to return at a later time when he or she is in a more coherent state to complete the signing.
One Final Word On Safety
If you feel threatened or that refusing a notarization would place you in imminent danger, go ahead and complete it. Then report the situation immediately afterwards to your local law enforcement.
Kelle Clarke is a regular contributor to the National Notary Association.