Last week we asked our community to comment on the very challenging, real-life scenario of a Notary who was asked to notarize a power of attorney for a patient in a hospital isolation room who was dying of a contagious disease. The Notary was not allowed in the room, but could see the man through the window in the door and could speak to him on the phone.
A nurse was available to facilitate the assignment by bringing the man’s ID and the signed document to the Notary and taking the journal into the room.
What you said
One of the biggest issues our Notary community expressed was the risk of catching or spreading the disease via contaminated ID, document or journal.
“I'd be more concerned about disease transmission to me and the outside world,” noted Leslie Colburn, echoing the concerns of other commenters. “I would question the nursing staff regarding the nature of the illness and mode of transmission. I would also question the staff regarding whether the document, after signing, could transmit the disease.”
Colburn would, however, be comfortable regarding the notarization as long as “I had full-facial view through the glass and could communicate via cell phone.”
“I would ‘suit up’ in the appropriate protective clothing and go in with the nurse as an escort,” wrote Christine Wissbrun, an NNA 2016 Notary of the Year Honoree. That way, she could speak to the patient directly and determine that he understands what he’s signing.
“I work at a hospital and sought advice from our Infectious Disease and Control Department on such an issue,” wrote Marlen Garcia. “I was strongly advised not to perform such services as my journal would be at risk of being contaminated.”
“If I could see the patient through the glass window — and have the nurse bring him as close as possible — and observe him sign the POA and my journal (provided he has gloves on), I will complete the notarization,” wrote Chris Nwakobi.
Judy Dickson agreed with Nwakobi: “As long as I can see the signer and speak with him, I would feel comfortable completing the notarization.” She would have the nurse hand her the ID and ask the patient to verify information on it. “If he can do so easily… that would be sufficient for me.”
But not everyone agreed. “This is a pretty tough situation. In California, I would most likely not be able to notarize the POA,” wrote Verne Gordon. “Identification is very hard when viewing someone through a window in bed.”
“This is one of the most difficult type of scenarios for the Notary, as it pulls on our heart strings,” noted Julie Brickley. “I would refuse notarization, but would also refer them to a remote Notary service.”
Standards of practice
As mentioned last week, this scenario poses a variety of issues, including:
The concerns about the risk of catching the disease through contaminated objects such as the journal, ID and document would have to be addressed by the hospital staff.
When it comes to the notarial issues, whether you can complete the notarization depends on the requirements of your state. In this case, the real-life situation took place in California.
California law requires a signer to appear personally before a Notary Public. This means the signer must be physically present before the Notary. In addition, the Notary must be able to communicate with the signer. California Notaries also must have the signer sign their journal entry. And for powers of attorney, the signer also must leave a thumbprint in the journal.
With respect to the physical presence issue, this situation is similar to notarizing for an inmate in a prison where visitors are separated from the inmate by a clear barrier. It is acceptable to allow a prison guard to hand documents, IDs and the journal between the Notary and signer as long as the Notary can see and communicate directly with the inmate.
In the same vein, it would be permissible for the Notary to allow the nurse to courier items back and forth with the patient as long as the Notary could see the patient and communicate directly with them.
Verifying identity could be a challenge if the patient were too far away to clearly compare with the ID photo. However, asking about the details on the ID could be enough to be satisfied that the patient is who he claims to be.
In Florida, state law says Notaries can be fined up to $5,000 for failing to require the signer to personally appear before them at the time of the notarization. At the same time, state law also requires Notaries to “make reasonable accommodations to provide notarial services to persons with disabilities.”
Verifying the identity of the dying signer, California, Florida and Tennessee have a statute that could be applied in this situation. These states have a law stipulating that satisfactory evidence of identity “means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe” that the signer is not who he claims to be. If the information, evidence or circumstances surrounding the identity of the signer raise concerns, Notaries in these states could legally decline the notarization.
In North Carolina, the situation could be more complicated. There, personal appearance means being in close enough proximity to the signer to see, communicate and exchange documents back and forth. In this case, it could be argued that being separated by a door with a glass window prevents the Notary from exchanging documents with the bed-ridden signer, a key test of the personal appearance requirement.
In states that don’t offer guidance, several standards of practices set out in The Notary Public Code of Professional Responsibility would allow Notaries to perform the notarization in this scenario. In particular, Standard III-A-1, requiring personal appearance, Standard III-B-1, requiring the signer to be identified, Standard III-C-1, requiring the signer to be mentally aware, Standard III-C-2, requiring the signer to coherently communicate with the Notary, and Standard III-C-3, requiring direct communication between the signer and Notary, would be satisfied.
In this case, it would be reasonable to complete the notarization. However, if you have any concerns about the notarization or the health risks, it would be possible to recommend a remote notarization, a creative solution one commenter suggested. If the patient used a Virginia Notary, the venue for online notarization would be Virginia and Virginia law would apply, even though the signer is in California.
Related Articles:
What Would You Do Answers: The case of the absent signer
Webcam Notarizations: Redefining personal presence or opening the door to fraud?
Additional Resources:
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