Physically Impaired Signer

The Sight-Impaired Client
ASN Hot Tip, October 2009-#1

A notary should not proceed with performing a notarial act if he/she feels that the client is not fully informed of the contents of the document. This would certainly be the case when the client is sight-impaired or cannot read the document for some other reason. The notary should therefore read the document aloud to this signer.

Some states require by statute that the notary read the entire document to a sight impaired client before proceeding with performing the notarial act. Reading the document to a sight-impaired client, or to a client who cannot read the document for himself, assures the notary that the client is informed of the wording and contents of the document that he is about to execute by signing.

Caution: the notary is restricted to reading the document word-for-word to the sight-impaired client. If asked, the notary may repeat the reading of a section of the document, but the notary must never answer the client’s questions relating to the document’s purpose or effect. Reading the document aloud to the signer is not meant to put the notary in the position of making such explanations to the signer.  The notary is simply ensuring that the signer is apprised of all the wording contained in the document. If the signer doesn’t understand something in the document, he must direct questions to the document originator, the document recipient, an attorney, or others connected to the document transaction.

If the client says that he understands the document as read to him and is prepared to sign it, the notary may proceed with performing the notarial act if all the other required elements for lawful notarization are present. If the client asks the notary a question that shows that he does not understand something in the document, the notary should postpone performing the notarial act until the client can direct his question to an appropriate person (as mentioned above).

Carefully record the circumstances of a notarization for a sight-impaired signer in your recordbook of notarial acts. In the “Comments” section of your recordbook entry, note that you read the document aloud to the signer before proceeding with notarization, because the signer was sight-impaired.

Signature by Mark or Physically Unable to Sign
ASN Hot Tip, February 2008-#2

Mobile notaries who are willing to travel to the location of a person requesting a notarial act can find themselves in situations where they may have to look out for the interests of a vulnerable signer and make a decision that can upset others involved in the transaction. Sometimes, although the transaction seems to be legitimate and needed, the laws of the notary’s commissioning state do not permit the requested notarial act to be performed.

ASN has been called by more than one member notary when a document (frequently a power of attorney) must be signed in a stressful environment such as in a hospital room or nursing home. Typically, the signers of these documents are in various stages of physical ability to sign the document and differing levels of mental awareness to understand the contents of the document. There are usually family members present who are anxious for the document to be signed and aren’t concerned with following either lawful notarial procedure or best notarial practices.

A mobile notary may have had experience with the circumstance of a signer who can no longer control the movement of his hand enough to sign his usual signature on a document and will have to sign using a mark. Occasionally, a mobile notary will encounter a person who is physically unable to make a mark.

Under these circumstances, there are a couple of deal breakers in the process of performing a notarial act that must be considered before the decision of how the document will be signed becomes an issue:

1. Can the signer be positively identified according to the laws of the notary’s commissioning state? If the notary is not able to satisfactorily identify the signer, there can be no notarial act performed. The hospital staff may have the signer’s belongings elsewhere in the hospital, or the signer’s wallet could have been left at the scene of an automobile accident. No matter how much the notary wants to help the family members with what appears to be a legitimate transaction, the notary is bound by his state notary laws that dictate the acceptable methods of positively identifying the signer.

2. Is the signer mentally capable of understanding the transaction at hand and the contents of the document?  We have heard from members called to a hospital room only to find the document signer has been given pain medication or sedatives that render him incapable of making an informed decision about a transaction at that time. Question the signer to ascertain his level of comprehension.

If the signer can be identified and is lucid, the method of signing the document can be discussed. In all cases, the person named in the document must sign for himself without anyone holding his hand and making a mark for the signer. We have received calls asking about this type of situation. Similarly, the signer who cannot make a mark must be able to direct the notary to sign on his/her behalf if the notary’s state laws permit such an action. To minimize stress and possible coercion, try to clear the room of everyone except the document signer, the witnesses and yourself.

If the signer can make a mark for himself, you may replace the notarial certificate that is printed on the document with the same type of notarial certificate that is specific to someone signing by mark. Draw a diagonal line through the existing notarial certificate and indicate that another notarial certificate is attached. Put your initials on this change.  If there is no notarial certificate on the document, the signer will have to choose which notarial act he wants you to perform, and you will attach the appropriate notarial certificate for someone signing by mark. The notary will want two disinterested witnesses to watch the signer sign the document. The notary will also have the witnesses sign the notarial certificate and fill out an entry in the notary’s recordbook. This is a situation in which the notary will want the signer to sign in the presence of the notary and the witnesses even if the notarial act is an acknowledgment which normally would allow the signer to have signed the document before the arrival of the notary. Before the signer makes a mark on the document, the notary must prepare the signature line for someone signing by mark.

Example:    John           X             Doe
                          (His/Her Mark)

Draw a signature line, putting the signer’s first name on the left end of the line, and the signer’s last name on the right. Underneath write “(His/Her Mark).”

The signer makes his or her mark as close to the space provided as he or she is able.

If the signer is lucid, but is not capable of making a mark for whatever reason, some states have a statute that allows the signer to direct the notary to sign the document on his behalf. Before a notary uses this method of assisting the signer, however, he must first locate the statute that permits him to do so. The notary must cite the allowing statute near the signature block on the document. There is a special notarial certificate for a situation in which the notary is acting as the hand of the signer and signing the document on behalf of and at the direction of the signer who is physically unable to sign the document himself. This notarial certificate has spaces for the signatures of two witnesses. There are notarial certificates for an acknowledgement notarial act and for an oath or affirmation because the signer is considered to be signing the document himself and only using the notary as his “hand.” In this situation, the notary must also prepare the signature line for the notary to sign at the direction of the signer.

(“Signature” of Disabled Person)

By: (Printed Name of Notary)
Signature Affixed by Notary pursuant to (Cite Permitting Statute)

The performance of notarial acts such as the examples given above can be challenging for the notary. Be prepared in advance for these unusual situations by knowing the applicable notary law and having the correct notarial certificates in hand.

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