Notarizing and Dementia – A Risky Combination
~ By Susan Q. Tomasovich ~
According to the Center for Disease Control, 5.3 million Americans have Alzheimer’s disease. By 2050 that number is expected to double. Anyone working in a memory care community becomes familiar with the seven stages of dementia and working with the residents’ families. As a Notary Public working in this community, there are special challenges a Notary might not encounter working in other places. I am a Receptionist at a memory care community and Notary Public, so some interesting situations have presented themselves to me. Specifically, on several occasions, I have been asked to notarize the signature of a person who has been diagnosed with dementia. Most families understand I can’t do this once I explain why. However, one family I refused to notarize for, just took their loved one to the bank, The Notary at the bank was not only uninformed that the person signing had dementia, but was not aware of the rules against notarizing for a person with diminished mental capacity.
Working as a Notary in a business office, I never encountered this situation. Now that I work around people with dementia every day, I have learned the rules about notarizing in this special situation. I have always focused on determining whether or not the person was signing under undue influence or duress, whether a lawyer is present and whether or not I was asking the proper questions. If you are going to notarize the signature of a person with dementia, you need an expert on dementia present to ask the right questions to ensure that they understand the document and they are not under duress. Once, I did notarize for one of our residents under those conditions. The two witnesses were experts in dementia and together with the resident, proved to me that she knew what she was doing and was not under any duress. In any other scenario, the signature can easily be contested in court, ruled invalid, and the Notary could lose their commission.
While your loved one is in the early stages of dementia, they are lucid, aware, and can understand the purpose of the documents. That is the time when legal counsel should be sought. According to Megan E. Waples, of the Colorado Secretary of State’s Office, “Those families should seek legal counsel or consult other elder care resources to determine what options are suitable for their specific situation.Ê The Elder Law Section of the Colorado Bar Association may be able to provide additional resources or information.” If they are in medium to advanced stages of dementia, you will need to turn to the court system. Colorado state statute Article 14 “Persons under Disability Protection” says “An individual or a person interested in the individual’s welfare may petition for a determination of incapacity, in whole or in part, and for the appointment of a limited or unlimited guardian for the individual.” So if your loved one is in the middle to advanced stages of dementia, you may need to petition the court for guardianship. In the alternative, an attorney can help you get durable power of attorney, which ends upon death.
It is an honor to protect and work with people with memory loss and serving as a Notary Public is a privilege that should not be taken lightly.
Susan Q. Tomasovich is a Receptionist at Greenridge Place Memory Care in Westminster, and a Colorado Notary Public. (This article does not constitute legal advice.)
