This originally aired on the Catholic Faith Network’s show CFN Live: https://youtu.be/Uy9_EvlFiFo While most people…
An Alzheimer’s or dementia diagnosis can be a challenging journey for the person and family alike. When the diagnosis occurs, a ticking clock begins on the timeline for getting proper and sound notarizations done for crucial legal documents.
What does it mean to get a document notarized?
According to the National Notary Association, having a document notarized is a process that ensures the document is authentic. The Notary serves as an impartial screener who confirms the identity, willingness, and awareness of the person signing the document.
There are vital issues and implications to be aware of when having documents notarized for individuals with dementia.
Why is there a legal gray area notarizing for a person with dementia?
Having documents notarized for seniors with dementia leads to some legal gray areas. There are no laws that prohibit having documents notarized for individuals with cognitive impairments. However, the role of a Notary Public extends beyond the procedural formalities.
Notarizing documents for anyone who is cognitively impaired also comes with a dramatically increased risk for both fraud and elder abuse. This is an issue that Notaries are highly aware of and protect against.
Notaries must assess whether their document signers understand and are aware of the nature of the documents, their contents, and their details. They also must verify the signer’s identity.
Notaries must screen each signer to ensure they are signing the document willingly. The signer cannot be under the pressure or direction of any third party.
The Notary will refuse to notarize a document if they find that any of these conditions fail to meet the standard.
It’s critical for families to act ethically and responsibly in notarizing important documents for their aging loved ones with dementia. If your loved one is facing a dementia diagnosis, establish legal clarity as soon as possible to avoid uncertainties later.
How do I prepare for having documents notarized?
The following tips will help you prepare:
- Make sure the Notary visits the signer at a time when they are cognitively aware.
- Arrange for the signer to meet privately with the Notary.
- Confirm what type of notarization you need on specific legal documents. If you need anything clarified, check with your attorney or the document recipient.
- Ensure the signer is prepared to present their identification. They also must be able to sign the document, if necessary, as well as the Notary’s record book. Some states also require a fingerprint impression.
- Ensure there are no blank spaces or dates on the documents. To combat fraud, a Notary will refuse to notarize if required entries are blank.
Legal Documents to Have Notarized for Dementia Diagnosis
Certain legal documents, more commonly notarized for seniors, serve the person’s wishes and protect them from undue influence. Those documents include the following:
Power of Attorney (General vs. Durable)
A power of attorney grants authority to a trusted individual to make financial and legal decisions on behalf of someone else. A general power of attorney is effective immediately. In contrast, a durable power of attorney remains in effect even if the signer becomes unable to handle their affairs.
HIPAA Release Form
A HIPAA release form grants specific individuals access to the signer’s medical information, aiding health care decisions.
Notarizing a will or trust guarantees the proper distribution of assets after your loved one’s passing, minimizing potential disputes.
Additional Documents Not Notarized
The following legal documents, while not notarized, also serve the person’s wishes and protect them from undue influence and should be executed while your loved one still has the capacity to make decisions. The following documents require two independent witnesses, rather than requiring a notary. Those documents include the following:
Health Care Power of Attorney
This document designates a representative to make medical decisions when the individual is unable to do so. You may also hear it referred to as a health care proxy. This document ensures that all parties will respect the signer’s health care preferences.
A living will outlines end-of-life medical preferences. Having this document provides assurance that medical choices align with the signer’s wishes.
Last Will and Testament
A last will and testament, similar to a trust, guarantees the proper distribution of assets after your loved one’s passing, minimizing potential disputes.
Act before it’s too late!
The absence of specific laws surrounding notarial acts and dementia highlights the importance of being proactive. Waiting until the last moment to have something notarized may lead to legal difficulties or disputes. Namely, if your loved one no longer has the capacity to sign documents, you will be required to petition the court for a guardianship which is both costly and time consuming.
As soon as you receive confirmation of your loved one’s dementia diagnosis, or if they appear to be suffering from some type of cognitive impairment, initiate the process of having key legal documents notarized, if you have not done so already. It is essential you do this while your loved one can still articulate their wishes. This way, you can help protect them while reducing potential family and legal conflicts.
If you would like to speak with an experienced elder law attorney regarding your situation or have questions about something you have read, please do not hesitate to contact our office at 1 (800) 680-1717. We look forward to the opportunity to work with you.