When a loved one receives a diagnosis of Alzheimer’s disease or another form of dementia, one of the first things the family should do is obtain any legal documents they may need to plan for their elder's future care. This includes durable medical and financial powers of attorney (POAs), advance health care directives, a will and other estate-planning documents. By waiting to make these preparations, there is a chance that the dementia patient may decline to the point where they are no longer mentally competent to participate in legal decisions. Unfortunately, many families hold off until it is too late, placing them in a difficult and costly situation.
Attorneys have an obligation to determine a client’s capacity to execute legal documents, but some families choose not to work with a legal professional when engaging in long-term care planning and estate planning. Even if a senior prefers a do-it-yourself approach, POA forms and even a will may have components that must be notarized to ensure their validity.
Notaries public are held to principles and standards of professional and ethical practice as outlined by the National Notary Association. Guided by the principle that notaries have an ethical obligation to screen for mental competence, a loved one with a dementia diagnosis may reach a point where they are not able to complete notarizations for important legal documents.
Notarization Laws and Guidelines
There are no laws that prohibit notarizing for someone on the basis of a dementia diagnosis. However, many states have laws about evaluating a signer’s awareness, willingness and competence that could make it difficult for a dementia patient to successfully get their documents notarized.
In some states, the law requires a notary to refuse a notarization if the signer lacks awareness of the significance of the transaction or what is in the document. Other states may not have laws with specific guidelines but do recommend that notaries follow business best practices about screening their signers. This means that if an ethical notary doubts a signer’s awareness or willingness, they should refuse to perform the notarization.
Evaluating a Signer’s Mental Competence
One of a notary’s basic duties is to evaluate a signer’s awareness and willingness to sign. This applies to overall awareness of their environment at the present moment as well as awareness of the contents of the document. A notary must be confident that the principal (the individual whose signature is notarized or for whom a notarization is performed) knows what they are signing and that they are willing to do so without being unduly influenced.
For someone who is cognitively impaired, awareness may be an issue. Even in the early stages of dementia, a senior may have moments of forgetfulness and confusion. A notary may ask questions and observe the way they communicate to get a better idea of their mental state. If the principal cannot answer questions about the document or basic questions about their surroundings, or if they appear confused or are unable to communicate clearly, this indicates a potential problem.
A notary may ask to speak to the principal alone. Understand that this is a vital step to determine whether they are aware of the contents of the document. Here are some of the things a notary may do to gauge a principal’s awareness:
- Talk with the signer about non-personal matters, such as the weather or weekend plans, to determine how well the signer communicates and thinks.
- Ask the signer to briefly explain the purpose of the document(s) he or she is signing.
Indications That the Principal is Not Competent
The following red flags could cause a notary to refuse to perform a notarization:
- The signer is unable to answer the notary’s questions or is unresponsive.
- The signer displays signs of confusion, disorientation or agitation.
- The signer cannot explain the purpose of the document or why they are signing it.
- The signer repeatedly asks questions about the notarization or needs to be reminded of what they are doing.
If a notary deems that a principal is not willing, aware or able to communicate coherently, he or she will likely refuse to notarize the document(s) in question. The Notary Public Code of Professional Responsibility of 2020 published by the National Notary Association states that a “notary shall not perform a notarial act if the notary has a reasonable belief which can be articulated that the principal or witness identifying the principal, if any, does not have the mental capacity to execute the notarial act.”
What Should You Do If the Notarization Cannot Be Completed?
If a senior is not able to go through with the notarization, talk with the notary to see if they are able to come back at another time when the signer is more coherent. People with dementia may be more lucid at certain times of the day.
Many notaries will work with clients to find a time when a principal is willing, aware and able to sign. However, if the signer continues to display consistent signs of mental incompetence, the notary may again refuse to complete the notarization.
If a senior has already reached the point where they are unable to complete notarizations, you may need to talk to an attorney about alternative options (like seeking guardianship or conservatorship in the absence of a POA designation). It’s best to plan ahead and act within early stages of a diagnosis before this step becomes necessary. By making sure you’ve created and notarized the most important legal documents with your loved one, they will secure their future care and ensure that their final wishes are carried out.