The Hospital Bedside and the Daughter's Prompting
Notary M is called to Room 412 at St. Anne's Hospital. The patient, R, is an 88-year-old widow who had hip surgery two days ago and is receiving opioids. R's daughter, L, has prepared two documents: a durable power of attorney naming L as agent, and a codicil to R's will that leaves the house to L. L says R 'wants to sign right now' and hands M a physician's note saying R is 'alert and oriented times three.' When M asks R the date, R says 'the year after the war.' R cannot name her other two children. When M asks what the house document does, R says, 'Whatever Linda says is fine.' L answers each question for R, places the pen in R's hand, and says, 'Mom, tell her yes.' R then says, 'Yes, I want to sign.' M has known the family for ten years and has notarized for them before. R's eyes are closed during part of the conversation. No interpreter is needed; R speaks English.
1. What must M assess before notarizing, and may M rely on the physician's note or L's answers?
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M must assess identity, capacity, and willingness. Identity is straightforward. Capacity is act-specific: M does not diagnose, but must have a reasonable belief that R understands the nature and effect of the document she is signing and is acting voluntarily. The physician's note is weak evidence. It is generic, may be stale, and does not address the specific acts. It also cannot substitute for M's own observation.
L's answers cannot substitute for R's. The signer must communicate her own willingness. Red flags are substantial: opioid use, disorientation to date, inability to name her other children, closed eyes, a beneficiary who prepared the documents and supplies answers, and a leading prompt. M should interview R alone, ask open-ended questions, and ask R to explain in her own words what the power of attorney does, who L is, what the codicil changes, and why she wants it.
If R cannot do so consistently, M should decline. A bare 'yes' after prompting shows compliance, not necessarily voluntary assent.
2. M decides to proceed because R said 'yes.' What risks and recordkeeping steps are involved?
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Proceeding on a bare 'yes' is risky. A notarization does not validate a document if the signer lacked capacity or was unduly influenced. The codicil is especially vulnerable because L is the beneficiary and is controlling the interaction. M could later be called as a witness and questioned about what she observed.
If M nevertheless proceeds, she should document:
- the private interview and the questions asked;
- R's answers in R's own words;
- who was present and who spoke;
- the physician's note and its date;
- R's physical condition and any interruptions;
- the fact that L prompted R.
Documentation cannot cure a lack of capacity or undue influence. The better course is to decline and tell L in neutral terms that M cannot satisfy herself today. A notary should not rely on a physician's note as a shield. If R insists, M should suggest independent counsel, a current capacity evaluation specific to the documents, and a different notary.
3. If M declines, how should she explain the refusal and what alternatives should she offer?
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M should explain without diagnosing: 'I am not able to satisfy myself today that your mother understands these documents and is acting freely, so I cannot notarize them.' She should avoid saying R is incompetent or that L did something wrong. She should not disclose R's confused answers to L beyond what is necessary.
Alternatives:
- Reschedule when R is more alert and has fewer pain medications.
- Have R's attorney present to explain the documents.
- Obtain a current capacity evaluation that addresses the specific acts.
- Use a different notary who can make an independent judgment.
M should document the refusal and the reason in her journal if required. If L pressures her, M should leave. The notary's duty runs to the integrity of the act and to the signer, not to the family's urgency. M's ten-year relationship with the family makes it especially important that she not bend the standard.