Determining Sound Mind as a Notary
As notaries, we have a very important responsibility. The responsibility of “determining sound mind” of a signer is a critical component of being a notary. We must be confident that the signer understands the implications of their actions when signing a document.
They must be able to demonstrate that they understand the nature and intent of the document being signed and notarized. I find that the most effective way to determine sound mind is to simply engage in a conversation with the signer. This will allow you to quickly ascertain their mental competence.
How To Engage The Signer
Begin by asking a variety of questions to determine if their response is appropriate and coherent. You want to look for signs that they may be confused, unaware, or not able to effectively communicate. Some common situations you may encounter are signers with dementia or on medications. If you are concerned that this may be the case, try to ask more open-ended questions that require more than a yes or no answer.
Try focusing on questions regarding sports or weather. You can also seek clarification by asking them to tell you a little bit more about the document they are about to sign. If your signer appears to be uncertain or confused you should pause and see if you may be able to consult with their attorney or doctor.
Refusing A Notarization
If there is any question of an individual’s competency or they are clearly incompetent you will need to refuse the notarization. Keep in mind, depending on the situation, you may offer to return at a later time when the signer is more coherent. Perhaps they are not feeling well or on/off heavy medications.
However, if you have refused to notarize the document you want to note in your notary journal the steps you took and questions you asked to make this determination. If at any point you feel by refusing to complete the notarization you could be put you in harms way, go ahead and complete it then report the situation to the local authorities immediately afterwards.
Speaking of notary Journals, check out this article from Notary Jane on the importance of having a notary journal.
Look For Red Flags
Notaries are not typically trained in this area and we are not health care professionals so what can we use to determine a signer’s mental state? I tend to look for “red flags.” Are there family members or others in the room that are rushing you through your questions? Does your signer seem incoherent but other parties in the room are insisting you notarize the document?
You can request that all parties leave the room (with sensitivity to the signer’s feelings). If this is upsetting you can suggest instead a neutral party be present. This could be a staff member, nurse, or aide. In situations like this, be sensitive to all parties involved but do not feel that you cannot refuse a notarization if you are uncomfortable or have concerns. Again, document all details in your journal as to what led you to your decision. You want to avoid any type of risk to the signer as well as to yourself.
Always begin with a conversation. Engaging in a light conversation will help you quickly ascertain the signer’s mental competence. Ask open-ended and clarifying questions. Look out for red flags. You may refuse a notarization if you feel safe to do so. Don’t forget to document the situation, the steps you took, and questions you asked that led you to decide to refuse the notarization. The responsibility of a notary is significant in these types of situations.
Always put your signer’s best interest first. Leverage you state’s guidelines for questions and guidance. And remember to protect yourself by not providing a notarization that you know could be questioned at a later time.
For more information on what to do during notary signings, check out our article for when a signer doesn’t have any Identification.