Awareness and Willingness Screening
As a layperson, a notary does not make a medical diagnosis or legal opinion of mental incompetence. The legal procedure for declaring a person mentally incompetent requires a mental competency hearing by a court and a psychiatric or psychological evaluation. The alleged incompetent person has the right to due process of law. We are presumed to be mentally competent unless proven otherwise.
Even medical professionals and attorneys may disagree on whether a person can understand the purpose and consequences of signing a document. Many legal documents are complicated and filled with legal terms the average person may not understand without legal training. Lawyers and judges often disagree and may have different legal opinions.
To make matters worse, some types of mental impairment are transient. The person’s level of awareness may vary from time to time. Temporary impairment may be due to the nature of the illness or injury, use of drugs, alcohol or prescription medication, or due to emotional stress or trauma.
The notary should use reasonable care as a layperson to decide if the signer appears to be aware of the purpose and consequences of the document. If the signer can respond coherently to basic questions from the notary about the notarial act, then the notary may consider the signer to be aware.
If the notary knows of any expert opinion of the person’s physician or attorney, the expert’s remarks about awareness should be noted in the journal. If a witness is also present during the signing, the witness information should be noted in the journal.
Over time, a notary may meet a person who does not seem to be aware. The notary should refuse to notarize the document and should make a note in the notary journal of the reason. An occasional journal entry of refusing to notarize due to lack of awareness is evidence that the notary is checking for awareness of signers and not ignoring it.
The notary should also check for willingness. The person must sign a document voluntarily, not under a threat, deception or duress. The notary may ask if the signer is signing willingly. If the notary has reason to believe the signer is not signing willingly, the notary should refuse to notarize the document.
If another person is present that appears to be causing undue influence on the signer, the notary may ask that person to leave so the notary may speak to the signer privately to determine willingness.
Most notary signings are routine and there is no reason to suspect problems of awareness or willingness. If the signer has approached the notary to request a notarization and is able to answer questions, there is little doubt about awareness. The notary should use reasonable care to observe and check for awareness and willingness and refuse to notarize when appropriate, noting the reason in the notary journal.