The Disputed Capacity at the Signing Table
An 84-year-old woman comes to execute a deed of gift of her only apartment to her grandson. She is accompanied by the grandson and his wife. She answers questions slowly, repeats the same sentence twice, and cannot state the current month, though she correctly names her two children and recalls the apartment address. Her hands tremble and she has a folder containing a psychiatric report dated eight months earlier stating 'mild cognitive impairment, no guardianship established.' The grandson urges the notary to hurry because 'she gets confused in the afternoon.' The apartment is worth 42,000,000 AMD and is her sole residence. A second, unrelated client is waiting.
1. What must the notary do before certifying the deed, and may the notary proceed today?
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Capacity to transact is assessed at the moment of the act, not by the label in an old report. The notary must satisfy herself that the donor understands the nature and consequences of a gratuitous transfer of her sole home. The disorientation as to time, the repetition, and the pressure from the beneficiaries are red flags. The notary should: (1) interview the donor alone, without the grandson and his wife present; (2) explain in plain language that the gift is irrevocable and that she will lose ownership and possibly her right to live there; (3) ask her to restate the consequences in her own words; (4) read the document aloud and have her confirm each material term; (5) record the observations. If doubt remains, the notary should decline to certify and advise a fresh medical assessment or judicial capacity determination. Proceeding 'quickly' because of the queue is not a lawful reason to skip these steps.
2. Does the psychiatric report settle the question either way, and what is its proper evidentiary weight?
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No. A report of 'mild cognitive impairment' is not a declaration of incapacity, and its age (eight months) weakens it further. It is one piece of evidence among others; the notary is not bound by it but must weigh it together with her own observations. Conversely, the absence of guardianship does not prove capacity: guardianship is a legal status, and a person may lack actual understanding without being under guardianship. The notary's contemporaneous record of the interview is the strongest evidence of what she verified.
3. The grandson later returns with a notarized power of attorney purportedly signed by the grandmother authorizing him to gift the apartment to himself. How should the notary treat it?
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A power of attorney cannot cure the doubts raised at the original attempt, and self-dealing is a distinct problem: a representative acting under a power of attorney generally may not conclude a transaction with himself in his own favor unless the principal has specifically and knowingly authorized that conflict. The notary must examine the power's scope and date, verify the principal's capacity and freedom at the time it was granted if possible, and refuse if the power does not expressly permit self-dealing. The timing (returning after refusal) and the identity of beneficiary and representative should be documented, and the notary should consider whether the earlier refusal must be reported where the circumstances suggest an attempt to circumvent it.