Navigating the notarization process for someone with dementia requires careful consideration of both legal requirements and ethical responsibilities. In Boston, the process must meet specific Massachusetts State requirements.
While Massachusetts law does not outright prohibit notarizing documents for individuals with dementia, notaries must ensure that the signer meets strict legal requirements at the time of signing. This creates a significant hurdle for those whose cognitive abilities fluctuate or have declined.
To complete the notarization successfully, three requirements must be met
- The signer must demonstrate clear comprehension of the document they’re signing and its implications
- the signing must be completely voluntary, free from any pressure from families, loved one, or interested third party
- In cases where it’s clear that the signer is not capable of making the decision on their own, a power of attorney is a viable alternative
The Signer must clearly understand what the document means
While it’s technically possible to notarize a document for someone with dementia in Massachusetts., it presents significant challenges. The key requirement is that the signer must demonstrate clear comprehension of the document and its consequences at the time of the signing.
It’s important to understand that notaries are not medical professionals and do not diagnose or assess medical conditions. Instead, they focus on one specific thing, whether the signer can demonstrate understanding of the document and what they’re signing at the moment.
The signer must be able to
- Understand what type of document they’re signing (such as deed, power of attorney, will etc..)
- Know why they’re signing it
- Understand the consequences of their signature on said document
While the notary is no medical professional and cannot diagnose a signer, they are typically for red flags. Common red flags include
- Inability to maintain focus on the conversation about the document
- Giving answers that don’t match the document’s purpose
- Showing signs of confusion about basic facts like the current year and location
- Changing the topic of the conversation
- Changing decision about whether or not they want to sign the document
If any of these red flags are present, the notary must decline to proceed with the notarization. This isn’t a judgment about the person’s condition – it’s simply ensure that Massachusetts legal requirements for document signings are met.
The signer must be acting voluntarily
External pressure can take many forms, and notaries are trained to watch for signs of interference. Sometimes, even well meaning family members can inadvertently create situations that would make a notarization invalid. For example, repeatedly “helping” someone remember what they’re signing or insisting on answering questions for them would require the notary to stop the process.
We at BMNA, have had to stop the process on certain notarizations, one recently as two months from the time of this writing. We had a notarization for someone in Boston where the party involved including a family member kept telling the signer what to say. It was clear that the signer was not able to make the decision on their own.
We had to step aside, and explain to the party involved that due to their involvement in the process as well as the signer seemingly not being able to make decisions on their own that this was not a notarization that we were comfortable moving forward with.
These situations are exactly why we have been appointed by the state of Massachusetts as notaries: to safeguard the integrity of the notarization process and protect vulnerable individuals from potential coercion or misunderstanding. Our role is not just to witness signatures but to ensure that every signer is fully aware of what they are signing and is doing so of their own free will.
The Power of Attorney, a viable alternative
Sometimes, despite best intentions, direct signing may not be possible due to the signer’s mental capacity. In these cases, a power of attorney might be the appropriate alternative for handling legal and financial matters.
However, a power of attorney must be established while the individual still has the mental capacity to understand what they are signing. If dementia has progressed to the point where comprehension is no longer possible, it is too late to create one. This is why early planning is critical—waiting until the need arises can lead to legal and financial complications that could have been avoided.
Establishing a power of attorney is a legal process that falls outside the scope of notarization. It requires legal guidance, and families should consult an attorney to ensure the document is properly drafted and executed. While a notary may be involved in notarizing a power of attorney document, they cannot provide legal advice or determine whether this step is necessary.
- Common Situations That May Indicate Power of Attorney is Needed:
- Consistent inability to understand basic document terms
- Frequent confusion about financial or legal matters
- Inability to make clear decisions about property, assets, or other responsibilities
- Regular failures to pass the comprehension requirements for notarization
Remember: A notary cannot recommend whether you need a power of attorney – that’s a legal decision that should be made with the guidance of an attorney. The notary’s role is simply to determine whether the current signing can proceed based on the signer’s present ability to understand and act voluntarily.
Understanding your options
Getting a document notarized for someone with dementia in Massachusetts requires careful consideration of three essential elements: the signer’s comprehension, their ability to act voluntarily, and whether a power of attorney might be needed. While notarization is technically possible, it comes with significant challenges.
Notaries serve as an important line of defense in protecting vulnerable individuals. They must verify that signers understand what they’re signing and are acting of their own free will. While this might sometimes feel like an obstacle, these requirements exist to protect your loved one’s interests and rights.
If you’re seeking notary services in Massachusetts for someone with dementia, understand that the notary’s decision to proceed or decline is based purely on the signer’s ability to meet legal requirements at the time of signing. It’s not a medical assessment or judgment about the person’s overall condition.
If direct signing isn’t possible, consulting with a legal professional about options like power of attorney can help ensure your loved one’s affairs are properly managed while protecting their interests.
