When witnessing and certifying the execution of documents, it is an essential element of a Notary Public’s task to assess signatory’s capacity to understand the implications of the document. A Notary Public should always distiguish between a person’s comprehension of the contents of a document and their mental ability to understand problems and make decisions arising from the document. For the purpose of a notarial act, only the latter is relevant.
When assessing capacity, a Notary Public does not rely on any medical or legal test. The level of capacity a Notary Public should look for depends on the nature and complexity of the document in question. In other words, the more complex the document, the harder it should be for a Notary Public to be satisfied that a person possesses the requisite capacity to execute the document.
Notary Public’s will often need to assess the capacity of minors, the elderly or persons with a mental illness and/or physical or intellectual disability. However, a Notary Public should be aware that the presence of any one, or a combination of these factors, does not necessarily suggest that the person in question lacks capacity. In all cases a Notary Public will assess the capacity on an individual on a factual, case-by-case basis.
It is often helpful for a Notary Public to seek an expert opinion on whether any of the factors listed above will affect the person’s capacity. Furthermore, when dealing with such persons, there are certain communication techniques a Notary Public should adopt:
- Use simple, clear, direct and concise language while keeping in mind the tendency for a recipient to take words literally;
- Pace the speech to allow time for understanding;
- Avoid using multiple negatives or introducing multiple concepts in the same sentence;
- Ask non-leading questions;
- Address the person, not his or her carer;
- Give reassurance and encouragement; and
- Do not assume satisfactory understanding merely because the person does not ask questions.
An example of where a Notary Public may be required to assess the capacity of a testator is with the making of a will. It is unfortunately a general truth that a testator’s mental capacity will diminish slowly with age, and a Notary Public must assess the testator’s understanding of the nature of the act and its effect and of the extent of the property of which he or she is deposing.