Key Takeaways
- Notary must assess that signer is acting willingly
- Signs of coercion or duress require declining the notarization
- Signer must appear mentally competent to understand the act
- Decline if signer appears confused, intoxicated, or under pressure
- Notary is not required to be a medical expert—just observe carefully
Willingness and Competence
Notaries serve as impartial witnesses and protectors against fraud. Part of this role involves assessing whether the signer is acting willingly and appears mentally competent to understand what they are signing.
Assessing Willingness
What Is Willingness?
The signer must be acting of their own free will, without:
- Coercion
- Duress
- Undue influence
- Threats
Signs of Unwillingness or Coercion
| Red Flag | What It May Indicate |
|---|---|
| Third party answering for signer | Possible control/manipulation |
| Signer seems afraid | Possible coercion |
| Signer is rushed or pressured | Undue influence |
| Signer hesitates or seems reluctant | May not want to sign |
| Someone hovering or monitoring | Potential duress |
| Signer says "I have to sign this" | Possible coercion |
What to Do If Coercion Is Suspected
- Speak privately with the signer if possible
- Ask directly if they want to sign
- Observe body language and demeanor
- Decline the notarization if concerns remain
- Document your observations if appropriate
Assessing Competence
What Is Competence?
The signer must appear mentally capable of understanding:
- That they are signing a document
- The general nature of the transaction
- The consequences of their signature
Signs of Possible Incompetence
| Warning Sign | Consideration |
|---|---|
| Confusion | Doesn't know where they are or what day it is |
| Intoxication | Signs of alcohol or drug impairment |
| Unconsciousness | Obviously cannot consent |
| Cannot communicate | Unable to respond to questions |
| Doesn't understand | Cannot explain what they're signing |
| Memory issues | Forgets the conversation repeatedly |
The Notary's Standard
Important: The notary is NOT a medical professional. You are not diagnosing mental conditions. You are simply observing whether the person appears to understand the basic nature of the transaction.
Questions to Ask
To assess competence, consider asking:
- "Do you understand what this document is?"
- "Do you want to sign this document?"
- "Has anyone pressured you to sign this?"
- "Do you have any questions?"
When to Decline
A notary should decline the notarization if:
| Situation | Reason to Decline |
|---|---|
| Signer appears intoxicated | Cannot meaningfully consent |
| Signer is clearly confused | May not understand the act |
| Evidence of coercion | Signature not voluntary |
| Signer is unconscious | Cannot provide consent |
| Third party tries to sign for signer | Wrong person signing |
Hospital and Care Facility Notarizations
Special considerations for signers in hospitals or care facilities:
| Factor | Consideration |
|---|---|
| Medication effects | May impair judgment temporarily |
| Physical weakness | May still be mentally competent |
| Presence of family | Not necessarily coercion |
| Time of day | "Sundowning" may affect cognition |
Best Practices for Vulnerable Signers
- Speak directly to the signer, not family or staff
- Ensure signer can respond to your questions
- Confirm understanding of what they're signing
- Watch for interference from others
- Document your observations carefully
The Notary's Protection
If you decline a notarization based on concerns about willingness or competence:
- You are protected from liability for declining
- It is better to decline a legitimate transaction than enable fraud
- Document your reasons for declining
On the Exam
Key points about willingness and competence:
- Assess willingness: Look for signs of coercion
- Assess competence: Observe ability to understand
- Not a doctor: Just observe and ask questions
- When in doubt, decline: Better safe than sorry
- Speak to signer: Not to third parties
What should a notary do if they suspect a signer is being coerced?
A signer appears confused about where they are and cannot explain what they are signing. What should the notary do?