A notary may decline or refuse to notarize a document if it appears that a signer is not signing willingly due to threat, intimidation, coercion, duress, enticement, or undue influence.
If other people are present and trying to force or influence the signer, the notary may ask the other people to remain quiet, to wait in another room, or to leave so the signer can make a free will decision without pressure or undue influence.
This situation may arise with senior citizens, a person with a disability, or with sick, weak or vulnerable patients in a hospital or nursing home, if friends, caregivers or family members are attempting to exert pressure or undue influence on the signer. The signer must sign of his/her own free will. This does not mean that the signer is always happy to sign, depending on circumstances and the nature of the document.
The document might be a legal settlement, where the signer agrees to pay money to settle a debt or dispute. It may be an end of life document, such as a will, living will, do not resuscitate (DNR), or disposition of last remains instructions. It might be a real estate or motor vehicle sale, where the seller is disappointed that he/she did not get a better price or better offer. There may be some reluctance, but that is different from being pressured or forced to sign.
Signature by Proxy
Sometimes family members will attempt to help a signer in a hospital or nursing home that is weak or injured and not able to sign. The family member may attempt to grab and guide the hand of the signer. That is not allowed.
If the signer is too weak, injured or unable to sign, but willingly wants to sign, the signer may request for another person to sign for him/her, in the presence of the notary. This is known as a signature by proxy, and the procedure is described in Colorado notary law, CRS 12-55-110.5.
At-risk Adults, Elders, and Juveniles
A notary should watch for possible signs of abuse, neglect or exploitation when dealing with senior citizens, or any person with a disability. Incidents of abuse may be reported to adult protective services, a health care ombudsman, or law enforcement.
Colorado law CRS 18-6.5-108 requires mandatory reporting for people in certain occupations, including health care, nursing homes, pharmacists, guardians and conservators, social services, clergy, banks, lenders, and law enforcement, to report elder abuse or exploitation to law enforcement. Notaries and attorneys are not listed.
Colorado law CRS 18-6.5-102 defines several at-risk categories. “At-risk adult” means any person who is seventy years of age or older or any person who is eighteen years of age or older and is a person with a disability.
“At-risk elder” means any person who is seventy years of age or older. “At-risk juvenile” means any person who is under the age of eighteen years and is a person with a disability.
“Exploitation” means an act or omission committed by a person who uses deception, harassment, intimidation, or undue influence to permanently or temporarily deprive an at-risk elder of the use, benefit, or possession of his or her money, assets, or property.
“Person with a disability” means any person who is impaired due to permanent loss of use of a hand or foot, blindness, unable to walk, see, hear, or speak, unable to breathe without mechanical assistance, with an intellectual and developmental disability, with a mental illness, or is mentally impaired with any mental or psychological disorder, organic brain syndrome, or specific learning disability.
“Undue influence” means the use of influence by someone who exercises authority over an at-risk elder in order to take unfair advantage of the at-risk elder’s vulnerable state of mind, neediness, pain, or agony.
Any person who obtains control over anything of value of another without authorization or by threat or deception commits theft, as defined in CRS 18-4-401.
Warning Indicators of Undue Influence
Here are some warning indicators that might indicate undue influence or an agent or adviser exceeding authority:
- Vulnerable Person. a susceptible at-risk person whose free will may become surrendered, manipulated or dominated to the unfair benefit of an influencing party by exploitation.
- Unreasonable Actions. provisions or changes in a document, or choice of agent or adviser, or actions that are extreme, unusual, suspicious, unnatural, unreasonable, drastic, sudden, unfair, exploitative or very different than the signer’s current document, or previously expressed wishes or decision, or that the signer would have otherwise normally chosen without undue influence.
- Censorship of Other Influence. a dominating influential person, rushing, pressuring, censoring, isolating or preventing the signer from discussing or critically analyzing the document or decision with an attorney, adviser, agency, trusted family member or friend, or another knowledgeable person or resource with more information, or a different opinion, to allow careful consideration of the pros, cons, and other alternatives, before making an important decision.
- Secrecy. an objection from a proposed or designated agent or adviser to including provisions for record keeping, a co-agent, monitoring, supervising, auditing, disclosing or verifying their records, actions or background.
- Power Grab. opportunity for a proposed or designated agent or adviser to obtain more secrecy, power, control, benefits, assets or authority, including irrevocable or hot powers in a power of attorney.
- Ignoring Principal. designated agent or adviser making decisions without discussion or approval of the principal, or ignoring, dismissing or ridiculing concerns, warnings, opinions or advice raised by the principal or other interested parties.
- Bad Reputation. dominating person with a history, behavior or reputation of dishonesty, fraud, theft, crime, manipulation, exploitation, greed, arrogance, anger, intimidation or abuse.
- Warning Signs. expressions of concern, worry, fear, suspicion or anger about undue influence from family members, friends, advisers, or other victims.
For a last will and testament, the Colorado Supreme Court discussed undue influence in the case of Ofstad v. Sarconi. The court said it can be hard to show when undue influence exists because there may not be direct evidence and there is “no precise formula.” The court said circumstances that may indicate undue influence are:
- A confidential relationship between the victim and the alleged influencer
- Terms in a will that benefit the perpetrator
- Mental or physical illness of the victim
- A will kept secret from the victim’s relatives
Notaries do not review legal documents, or diagnose medical or psychological conditions, and do not receive any special training in detecting coercion, duress or undue influence. The notary should use reasonable care, as a lay person, to try to detect and prevent coercion, duress or undue influence from interfering with the free will of a signer.
A person with a diminished capacity or a concerned party may want to schedule an exam with a medical professional to evaluate the competency status of the signer for contractual capacity or testamentary capacity, to avoid or prepare for potential challenges.
A notary must be neutral and impartial and should not encourage or discourage a signer from signing a document.
[Last-Modified Date 2017-04-08] add page links, new image