The majority of the time, your job as a notary public is straightforward and there are few issues with checking for signatory identification, reviewing the documents and assessing willingness to sign. However, many notary professionals will be faced with a person who is unable to sign due to some physical impairment. You may have doubts about whether you can go forward with the notarial act under the circumstances, but the law in most states does make concessions for such a situation. There are multiple ways to notarize a signature and still stay within the confines of your jurisdiction’s law. Here is a look at a few options.
Representative Signatories Under Powers of Attorney
A physically impaired signer may appoint an agent under power of attorney to execute documents on his or her behalf. The person acting as agent is known as a representative signer; in some jurisdictions, the term “attorney in fact” may be used, although the representative does not need legal training to act.
When a person is using a representative signer, you would go about your typical duties as a notary public; however, the notarial act is verifying the signature of the agent/attorney in fact – not the physically impaired person. You should obtain proper identification of the representative signer and enter that person’s name on the notarial seal. In some states, you must include special language on the certificate, indicated that an agent/attorney in fact is signing on another’s behalf. Other jurisdictions will require you to review documentary proof that the representative signer has authority to act for the impaired person, such as a power of attorney or court document.
Keep in mind that, in all jurisdictions except Illinois, the representative signer cannot swear an oath or affirmation of another person. However, an agent may be able to swear that the contents of the document are true, while avoiding a statement swearing that the document is true.
Notarizing Signature by Mark
If the signer is physically impaired and unable to sign, but there is no impact to mental capacity, many jurisdictions allow them to make an “X” or similar symbol as the signature. The signer must be lucid, coherent and signing of their own free will, just as with any notarization. This process is known as signature by mark and it eliminates the requirement of the signatory completing their full name on the notary certificate, especially when doing so would be physically impossible. The “X” or other mark will be notarized as if it was the person’s signature; however, you must follow your state’s requirements for the presence of one or more witnesses in order for the signature by mark to be proper. Some states have additional requirements for the procedure, so make sure to check before taking on signature by mark notary services.
It’s important to note that the signatory must be able to write the “X” or other symbol unassisted. A notary public cannot physically hold the person’s hand, nor can a third party. The notary process will be null and void if someone assists the physically impaired person with making the signature by mark.
Signature by Proxy
Some jurisdictions will allow a notary public or other third party sign on behalf of the signatory, under their own direction. In those states that permit another person to do so, the signer must be completely unable to write their full name or make a mark – mere inconvenience will not be sufficient. Where signature by proxy is allowed, the rules are quite specific about who must be present and how the process must take place.
For instance, if the physically disabled person wants the notary public to sign on their behalf, the event must be in the presence of the signatory and one or two other disinterested witnesses. Other states will never allow a notary public to sign for an impaired person, but another individual may act as proxy under the signatory’s direction and in the presence of the notary.
Signature by proxy is not allowed in all states, so it’s important to determine the legality and proper procedure before undertaking notarization via this process.
The Process for Executing and Notarization
No matter if you use a representative signer, signature by mark or proxy, many of the general requirements for notarization will remain the same. There are five essential factors to complete a notarial act:
- All signers must be physically present, as well as witnesses where required;
- You will verify what the document is and ensuring it’s complete, with no blank spaces or pages;
- You must verify the identity of the signatories and ensure they’re signing of their own free will;
- In some jurisdictions, you must record the transaction in your notary journal; and,
- You will apply the notarial seal and certification.
While some aspects of a notary’s job are different when dealing with a physically impaired person, the role remains the same: Your job is to help reduce the risk of fraud in signing important documents, such as:
- Documents conveying title to real estate, including the mortgage and other agreements between a buyer and seller;
- Wills, trusts and certain estate planning documents;
- Prenuptial agreements;
- Structured settlement transactions;
- Powers of attorney for property; and,
- Healthcare powers of attorney;
Your job as a notary public can be challenging when faced with a signatory that is physically unable to sign, but you do have options to complete the notarization process. The key is knowing the laws of your state and following every rule to the letter to ensure the notarial act is fully valid and enforceable. If you’re unsure about notarizing using any of these methods, contact a reputable notary services company that may be able to answer your questions.