Guest article by Michael Lewis
When your loved one receives a diagnosis of dementia, your first thoughts may be focused on the short-term care and who will provide it. It’s also important to consider long-term care.
There are many legal documents involved in long-term care planning, such as Powers of Attorney and advance healthcare directives (living will). These documents give loved ones the authority to act on behalf of the person with dementia who is unable to make decisions. However, these all require a notarization, which may become impossible once the dementia has progressed too far.
Criteria Involved in a Valid Notarization
Whenever Notaries perform a notarization, they follow several criteria to evaluate whether they can proceed. A Notary must verify the identity of the signer, their awareness at the time of the signing, and their willingness to sign. If any of these aspects are in doubt, the Notary should not proceed. Otherwise, the validity of the notarization could be called into question.
State Notary Laws
There are no specific laws that prohibit notarizing for someone with dementia. However, there are laws about evaluating a signer’s awareness that come into play. Some states instruct their Notaries to refuse a notarization if the signer’s awareness is in doubt. Others only recommend it. Either way, most Notaries will err on the side of caution to prevent a potential legal conflict.
How Notaries Evaluate Awareness
Notaries will verify not only that the signer is aware of the purpose of the notarization, but that they are aware of their general surroundings. A Notary will probably engage in small talk to evaluate how well your loved one communicates and thinks. The conversation could be as simple as chatting about the weather, sports, or hobbies. They will also ask about the contents of the documents to make sure your loved one understands what they are signing.
Here are a few red flags that might cause a Notary to stop the notarization.
The signer –
- Does not answer the Notary’s questions or is unresponsive when the Notary tries to engage them in conversation.
- Seems confused or disoriented.
- Is unable to state the purpose of the document or does not know why they are signing it.
- Asks repeated questions about the notarization or needs to be reminded why the Notary is there.
What Happens if the Notary Refuses to Proceed?
Ask the Notary if they can come back at a different time when your loved one is more coherent. People with dementia often have certain times of the day that are better for them. Many Notaries will work with you, but it could be that your loved one has reached the point where they are unable to sign these important financial documents. In that case, you will need to talk to an attorney about options in order to make important financial decisions for your loved one. It’s always better to plan ahead to avoid this step.
Wherever you are in your caregiving journey, it’s the perfect time to start attending to these important documents. Don’t put it off by thinking that there will be time later, or assuming it is already too late. Start planning as soon as possible so your loved one will be able to have the care that makes them most comfortable.
Michael Lewis is the managing editor of member publications for the National Notary Association and is also a former Notary Public. A graduate of the College of William and Mary with a B.A. in history, he is a veteran journalist who has written extensively about banking, finance and politics.