Thread Topic: dementia
Topic Originator: Deborah August
Post Date July 20, 2010 @ 9:41 AM |
|
| |
Deborah August
2 Posts
(Laguna Woods, CA)
|
|
Potential signer has doctors note that indicates dementia. Her son wants to add a neice as a backup person for the signer on a new health power and asset power. Is it safe for me to notarize this??? I have known the signer for 4 years plus and she has severe memory problems, but reognizes her son, neice and me. Suggestions please.
|
Paul Pitt
28 Posts
(San Diego , CA)
|
|
I ran into this when I listed and then sold a house. The son listed the house for a father who was severely incapacitated. The court then appointed a conservator who negated the pending offer and the listing and then put the family through a very long and expensive process to appraise the house and make sure the son had not cheated the father. In the end they sold the house for less than the offer I obtained and charged the estate thousands of dollars to help do that. The conclusion is that AFTER dementia can be shown by evidence if one does not have a pre-existing assignment or duties, the court will appoint a conservator who will negate everything and act on behalf of the patient (at great expense).
|
Paul Williamson
103 Posts
(Inverness, FL)
|
|
IF the signer can communicate with you in a lucid manner, and you can ascertain that the signer understands what the document is for and what the ramifications are once signed, then it's a go in my book. However, if the signer exhibits any behavior that would indicate that she does not know what's going on and does not know what the document is for and what powers are being granted, then you should not perform the notarial act.
Though the CA Handbook doesn't directly address this situation, the FL Handbook does. What the following paragraph describes can apply to your situation and circumstances in CA.
When performing any notarization, you should question the signer to determine that he or she is
willing and competent to execute the document. The following suggestions may be helpful:
* You may want to have an impartial witness for the notarization.
* If you are asked to go to a hospital or nursing home to provide services, check with the patient's nurse or doctor prior to notarization.
* Talk to the person alone. Ask questions unrelated to the notarization. Ask for his name, home address, and telephone number. You could also engage the person in a conversation about his family, his occupation, a television program, a recent news event, etc.
* Ask the signer to tell you about the document to be notarized. What kind of document do you need to sign? Have you read the document completely? Do you understand the document? Do you need someone to explain the contents of the document to you? Has anyone pressured you to sign this document?
* If you feel the person is mentally competent at the time, proceed. If in doubt, don't do it!
* Document the special circumstances of this notarization - even if you must refuse to notarize.
* Have the witness sign your journal.
|
Linda Hubbell
209 Posts
(Fort White, FL)
|
|
Here's the clincher for me..and IMO the answer to your own question:
"I have known the signer for 4 years plus and she has severe memory problems"
You KNOW she has memory problems...having dealt with dementia (my mother) I can tell you she knew my husband and myself - knew her grandchildren - and at first blush could carry conversation well - you'd never know anything was wrong unless you kept the chatter going for a while then she'd begin to fade and the dementia would be evident. And although she knew us, she had no idea what she was doing or why she was doing it....
Personally, I'd refuse to do this - refer them to an attorney for involuntary appointment of a conservator or guardian (or whatever applies in your state) - they're gonna need it.
|
Lisa Thornton
288 Posts
(Upland, CA)
|
|
I network with several attorneys and have asked them about this very thing. In spite of the fact that they all have different areas of expertise ( probate/ trust....real estate....family law....criminal defense) they all say the same thing....an alzheimer or dementia patient has times of complete clarity and awareness of the "who, what, when, and where" of life, and it's unpredictable and unmeasurable as to when they are their old self and when they are not.
From what you wrote, I agree with Linda.......you sort of answered your own question.......if you know the signer has severe memory problems, it's best to refer the family to a probate/trust attorney. It will cost them, but that's not your problem or concern. Never notarize for anyone at anytime when you are uncomfortable or unfamiliar with the situation. Don't ever let anyone persuade you....they are not the one's who will be held accountable for your actions....it's your commission and only you will be held accountable for your actions.
I've had to refer families to the probate/trust attorney I network with. I remember one family that called me because their sister had a stroke and they needed a POA signature notarized. They did not make an appointment during that first call and procrastinated for several weeks and then called me again an appointment. They lied to me saying the sister was okay to sign and was awake and aware, not on heavy meds. When I arrived, the sister's condition had deteriorated in those three weeks and she was like a zombie and totally unresponsive. I gave the family the business card of the attorney.
The only thing that was true from our conversation was that they had current ID for the sister. The rest was all lies to get me to the hospital. I suppose they thought since I made the trip I would notarize the signature of a person who couldn't even hold an ink pen. Needless to say, they were not happy I would not notarize and I was quite annoyed for having my time wasted - so it was a wash.
It's only 1% of the time that I am lured to a hospital patient on false pretenses. All other hospital patient appointments are straight forward and successful.
|
|
 |
