Notarizing in Special Circumstances

Question 1

Notarizing in Special Circumstances:

Answer 1

Occasionally you may be asked to perform a notarization that requires special handling. For example, how do you notarize if the document signer is blind? Cannot speak English? Has a disability? In any special situation, you should make every effort to accommodate the person’s request. If you are unsure about the notarization, though, you should decline to notarize.

Florida law addresses some of these situations, but not all. There are, however, some commonly accepted practices for unusual notarizations. As with any other notarization, you must rely upon the law, exercise reasonable care, and use your common sense. You may also want to note the special circumstances of the notarization in the notarial certificate and in your journal (if you keep one).

Question 2

Notarizing in Special Circumstances:

Answer 2

Remember, unless you are an attorney, you may not give legal advice when you provide notary services. That means you are prohibited from advising the signer which notarial act is required for his or her document, from preparing legal documents, or from explaining the contents or legal effects of a document.

Question 3

Notarizing in Special Circumstances:

Answer 3

If you believe that the person does not fully understand the document he or she is to sign, you should decline to notarize and suggest that the person seek legal advice from a competent attorney.

Question 4

For a person who is mentally incapacitated:

Answer 4

The law prohibits you from notarizing the signature of a person who you know has been adjudicated mentally incapacitated by a court of competent jurisdiction if that notarization pertains to a right that has been removed.

These rights refer to such things as the right to vote, to marry,
to execute conveyances of real property, etc.

Question 5

For a person who is mentally incapacitated:

Answer 5

What if the person is usually mentally competent, but is medicated at the time of the notarization, or what if a family member says the person is “in and out” of lucidity due to Alzheimer’s disease or some other mentally debilitating ailment?

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:

Question 6

For a person who is mentally incapacitated:

Answer 6

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.

Question 7

For a person who is mentally incapacitated:

Answer 7

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!

If you keep a record of your notarial acts, document the special circumstances of this notarization even if you must refuse to notarize.

Have the witness sign your journal.

Question 8

For a Person who is Blind

Answer 8

The law requires you to read the document to the document signer before the notarization.

You may wish to add a statement in your notarial certificate that you have complied with this requirement of the law: “I further certify that I read the document to (name of signer) prior to notarization.”

Unless you are an attorney, you cannot advise the person about the contents of the document; however, you may re-read any portion of the document to the person.

Question 9

For a Person Who Does Not Speak English:

Answer 9

The nature and effect of the document must be translated into a language that the person does understand. The law does not specify that a written translation is required; therefore, an oral translation is sufficient.

You may wish to add a statement in your notarial certificate that you have complied with this requirement of the law: “I further certify that the nature and effect of the document was translated for (name of signer) by (name of translator) prior to notarization.”

You may also want the translator to sign the document and your journal.

Question 10

For a Person Who is Deaf

Answer 10

The obvious problem that exists in this situation is communication. Unless you and the signer are competent in sign language or lip reading, you should communicate with the person by writing notes.

Make additional comments about the notarization in your journal entry.

Question 11

For a Person Who is Signing a Document Written in a Foreign Language Not Understood by the Notary

Answer 11

Remember, you are not responsible for the contents of the document, but you need to exercise caution in this situation.

Make sure that you can communicate verbally with the document signer or that a qualified, trustworthy translator is present.

Determine, if possible, that the document is complete.

Question 12

For a Person Who is Signing a Document Written in a Foreign Language Not Understood by the Notary

Answer 12

Check the document for a notarial certificate. If the document does not have a notarial certificate, ask the document signer for instructions. If he directs you which notarial act is appropriate for his document, proceed by adding the correct certificate and completing the notarization. If he does not know, refuse to notarize.

Complete the notarial certificate in English. The certificate may be translated into the language of the document, but the translated certificate should not be signed and sealed by the notary.

If you are unsure about the notarization, you should refuse to notarize.

Question 13

For a Person Who is Illiterate

Answer 13

Although not required by law, you should read the document to the document signer before the notarization.

You may wish to add a statement in your notarial certificate: “I further certify that I read the document to (name of signer) prior to notarization.”

Unless you are an attorney, you cannot advise the person about the contents of the document, however, you may reread any portion of the document to the person.

Question 14

For a Person Who Signs by Mark

Occasionally, you may be asked to notarize the signature of a person who signs with a mark. The person may be illiterate or may have a physical disability which prohibits him or her from signing in the customary manner. The notary laws do not require any additional procedures for notarizing in these situations. You may notarize in the same manner as for usual signatures. However, you may prefer to take extra precautions. The following guidelines may be helpful.

Answer 14

Question the signer to make sure that he or she understands the nature and effect of the document to be signed. If the person is illiterate, read the document to him or her. If the person does not understand, refer him or her to an attorney for legal advice and do not proceed with the notarization.

Ask for proper identification.

Perform the appropriate notarial act: administer an oath or take an acknowledgment.

Before the person signs the document, print his or her first name at the beginning of the signature line and the last name at the end of the line. Just below the line, print the words “His Mark” or “Her Mark”.

Question 15

Before the person signs the document, print his or her first name at the beginning of the signature line and the last name at the end of the line. Just below the line, print the words “His Mark” or “Her Mark”.

Answer 15

https://notaries.dos.state.fl.us/education/images/X.GIF

Complete the notarial certificate with all the required information. When filling in the person’s name whose signature is being notarized, you may want to indicate that the person signed by way of mark.

It is also recommended that two uninterested persons witness the signing of the document and the notarization and that their names and addresses be clearly printed under their signatures.

Make appropriate comments in your journal.

https: //notaries.dos.state.fl.us/education/images/JOHNDOES.GIF
https: //notaries.dos.state.fl.us/education/images/JOHNDOES.GIF

Question 16

For a Person with a Disability Who Directs Another to Sign

Answer 16

On a rare occasion, you may be asked to notarize the signature of a person who cannot sign a document in the usual manner. An individual with a disability may direct another person to sign on his or her behalf. See State v. Hickman, 180 So.2d 254 (1966). In a sense, one person substitutes his hands for the hands of the person with a disability. You may notarize this signature but you should indicate the unusual circumstances in the notarial certificate.

Question 17

For a Person with a Disability Who Directs Another to Sign

Answer 17

Question the person to make sure that he or she understands the nature and effect of the document to be signed. If the person is blind, read the entire document to him or her. If the person does not understand, refer him or her to an attorney for legal advice and do not proceed with the notarization.

Ask for proper identification from the person with a disability. It is not necessary to require identification from the designated signer. Think of that person only as the “hands” of the person with a disability.

Question 18

For a Person with a Disability Who Directs Another to Sign

Answer 18

The designated person may then sign the signature of the person with a disability at the direction of and in the presence of that person.

Perform the appropriate notarial act: administer an oath or take an acknowledgment. Your notarial act should be directed to the person with a disability, rather than the designated signer.

Question 19

For a Person with a Disability Who Directs Another to Sign

Answer 19

Complete the notarial certificate with the required information. When stating whose signature is being notarized, it would be best to indicate the special circumstances of the signing.

It is also recommended that two persons, with no interest in the transaction, witness the signing of the document and the notarization and that their names and addresses be clearly printed below their signatures. Unless otherwise required by law for the particular document, it is not necessary for the witnesses’ signatures to be notarized.

Be sure to get the witnesses and the designated signer to sign your journal and make appropriate notes.

Question 20

For an Oath

Answer 20

https://notaries.dos.state.fl.us/education/images/disoath.gif

Question 21

For an acknowledgement

Answer 21

https://notaries.dos.state.fl.us/education/images/ack.gif

Question 22

For a Person Signing with Power of Attorney

Situation: John Doe presents a document to be signed by Nancy Smith. John Doe state that he has power of attorney for Nancy Smith. John Doe signs the document in one of two ways:

Answer 22

(1) John Doe as attorney-in-fact for Nancy Smith (preferred way)
(2) Nancy Smith by John Doe, attorney-in-fact

Question 23

For a Person Signing with Power of Attorney

Answer 23

It is not the notary’s responsibility to ensure that the signer has power of attorney. The person states he has that authority and indicates this fact when he signs just accept his word.
Note: If you are notarizing in connection with your employment, you may need to require a copy of the POA for your employer’s files.

Note the capacity of the signer in the notarial certificate. Use a notarial certificate in substantially the same form as the one for an acknowledgment in a representative capacity.

Question 24

For a Person Who is a Minor

Answer 24

May I notarize the signature of a minor?

Generally speaking, you may notarize for a minor; however, all of the requirements of the notary laws must be followed.

Is there an age limit? The notary laws do not limit notarizations based upon a person’s age.

Question 25

For a Person Who is a Minor

Answer 25

The Governor’s Notary Section recommends that you exercise caution when notarizing for a minor. In particular, you should determine whether the minor understands the nature of an oath or acknowledgment before notarizing.

Question 26

For a Person Who is a Minor

Answer 26

For example, a woman recently called our office to ask whether she could notarize the signature of a 4-year-old child. The father wanted to transfer the title of a boat to his child. A child of this young age would probably not understand the transaction. On the other hand, we recently encountered a situation involving a 12-year-old child who wanted to submit a sworn statement to the court regarding an incident that she witnessed. She actually wrote down what she had seen and wanted to sign her statement and swear to it in the presence of a notary. Most likely, a 12-year-old child would understand the act of swearing to the truthfulness of a statement.

Question 27

For a Person Who is a Minor

• A parent will sign for a minor if they are unable to comprehend the information that is being provided. You will notarize the parent’s signature, not the child’s.

Answer 27

n these types of situations, the notary should question the child to make sure that he or she understands the nature of an oath or an acknowledgment. The notary should also determine that the child is not being pressured or coerced to sign the document.

When a child is too young to comprehend the transaction, a parent sometimes signs on behalf of the child. If you are asked to notarize in that situation, it is the parent’s signature that is to be notarized, not the child’s.

Question 28

What about identification for a minor?

Answer 28

Any time you notarize a signature, the signer, including a minor, must provide acceptable identification to the notary. The problem, of course, is that most minors do not have one of the forms of acceptable identification listed in the Florida Statutes. There are two possible solutions.

Question 29

What about identification for a minor?

Answer 29

First, you may be interested to know that any person 12 years of age or older may be issued a state identification card. To obtain the card, the person should apply at the local Division of Motor Vehicles office where driver’s licenses are issued.

Second, you may use the sworn written statement of a credible witness to identify the minor. (Please refer to page 33 for a full explanation of this method of identification.)

Question 30

What about identification for a minor?

Answer 30

When asked to notarize the signature of a minor, you may refuse to do so if you are unsure about any aspect of the notarization. In unusual situations, you may even suggest that the minor or his or her parent or guardian see an attorney.

Question 31

When determining if a document signer is mentally competent and willing to execute the document you may want to ask the signer questions unrelated to the notarization.
A. True
B. False

Answer 31

A. True

Question 32

When notarizing for a person who is blind, you are not required to read the document to the document signer.
A. True
B. False

Answer 32

B. False

Question 33

When notarizing for a person who does not speak English the document must be translated into a language that the signer understands.
A. True
B . False

Answer 33

A. True

Question 34

When notarizing for a person who is signing a document written in a foreign language not understood by the notary, the notarial certificate must be completed in English.
A. True
B. False

Answer 34

A. True

Question 35

An individual with a disability may direct another person to sign on his or her behalf.
A. True
B. False

Answer 35

A. True

Question 36

When notarizing for a person with a Power of Attorney it is the notary’s responsibility to ensure the document signer has the Power of Attorney.
A. True
B. False

Answer 36

A. False