The Forgetful Signer and the Expired License
Renee is a Kansas notary employed at a credit union in Wichita. On a Tuesday morning, an 82-year-old member, Mrs. Alvarez, comes in with her granddaughter to sign a durable power of attorney naming the granddaughter as agent. Mrs. Alvarez has been a member for ten years, and Renee personally knows her. Mrs. Alvarez hands over a Kansas driver's license that expired eight months ago. When Renee asks her to confirm she is signing voluntarily, Mrs. Alvarez looks at her granddaughter, repeats 'Is this the paper for the house?', and asks the same question three times. The granddaughter answers most questions for her and says, 'She's just a little forgetful; we need this done today.' The document has a preprinted acknowledgment certificate with a blank date and a line for the notary's signature. Renee has no reason to believe the granddaughter is acting improperly, but she is unsure whether Mrs. Alvarez understands the nature of the power of attorney.
1. May Renee rely on personal knowledge to identify Mrs. Alvarez even though the driver's license is expired? Explain the identification standard and how it interacts with the capacity concern.
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Kansas allows a notary to identify a signer by personal knowledge or by satisfactory documentary evidence, such as a current government-issued ID with a photograph and signature. An expired license is not 'current,' so it is weak documentary evidence. But the expired license does not erase Renee's genuine, longstanding personal knowledge of Mrs. Alvarez. If Renee truly knows her, personal knowledge can satisfy identification. The identification issue is not the main problem here. The main problem is capacity and voluntariness. A notary must communicate directly with the signer and must not proceed if the notary knows or reasonably believes the signer does not understand the nature of the act. Mrs. Alvarez's repeated questions, reliance on her granddaughter to answer, and apparent confusion are red flags. Renee should not treat the expired ID as the reason to refuse; she should focus on whether Mrs. Alvarez can explain, in her own words, what the power of attorney does, who the agent will be, and why she is signing. If Mrs. Alvarez cannot do that, Renee should decline regardless of personal knowledge.
2. What should Renee do about the repeated questions and the granddaughter answering for Mrs. Alvarez? Identify the red flags and the notary's duty.
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Renee should separate Mrs. Alvarez from the granddaughter for at least part of the conversation or ask the granddaughter to let Mrs. Alvarez answer. She should use open-ended questions: 'What is this document for?', 'Who will make decisions for you if you cannot?', and 'Are you signing because you want to, or because someone is pressuring you?' The red flags are: the signer asks the same question repeatedly, looks to another person before answering, has someone else answer for her, and the companion says 'we need this done today,' which suggests urgency and possible pressure. The notary's duty is not to make a medical or legal capacity determination, but to ensure the signer appears before the notary, is identified, and acknowledges the signature voluntarily. If Renee is not satisfied after direct questioning, she should decline to notarize and explain that the signer may need to speak with an attorney or obtain a capacity evaluation. She should not notarize simply because the granddaughter seems well-meaning or because the signer has been a longtime customer.
3. If Renee decides she can proceed, what must the acknowledgment certificate show, and what should she avoid writing?
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If Renee proceeds, the acknowledgment certificate must show the venue where the notarial act actually occurs-State of Kansas, County of Sedgwick-the date of the actual appearance, and a statement that Mrs. Alvarez personally appeared and acknowledged the instrument before Renee. Renee must sign, print her name and title, show her commission expiration if required by her seal or certificate, and affix her official seal. She should use the actual date she notarized, not the date the document was prepared or the date the granddaughter wanted. She should not write that Mrs. Alvarez is 'competent,' 'of sound mind,' or 'understands the document,' because those are legal conclusions beyond the notary's role. She should not let the granddaughter sign for Mrs. Alvarez unless Kansas law specifically allows a signature by mark or by another person at the signer's direction, and she should not backdate the certificate to make the document look older.