As a mobile notary public serving the Greater Baton Rouge area, sometimes I have to determine if a signer is truly competent to sign. In other words, I need to know that the person signing a legal document has the required competency to actually sign it.
As an example, let’s say that James calls me to visit his mom Susan in the hospital at OLOL. James wants me to notarize a Power Of Attorney that Susan will sign authorizing James to act as her agent on financial matters.
In scenario A: Susan is unconscious. James wants to “help” her sign the POA. Obviously, Susan is not competent, so I will not notarize the POA. She lacks the mental and physical capacity to enter into a contract.
In scenario B: Susan is doing well. She talks to me at length, explains that she knows exactly what the Power Of Attorney is for, and tells me that she is thrilled that James can now deal with her banking on her behalf. Obviously, in this case Susan has the required competency, so I will gladly notarize the POA after it is signed.
In scenario C: Susan is sitting up, talking to the television, and just seems “foggy”. I ask her if she knows what James wants her to sign. She says, “Yes, I do. This is a POA. I like grape jelly a lot!” Is Susan competent to sign this contract? Does she have the required mental capacity to enter into a contract?
I run into scenario C quite often. Sometimes it’s just not easy to determine if a client is truly able to understand what he/she is signing, but I need to live with myself at the end of the day, so I have to make the call that just feels right.
According to The Free Dictionary, competent means, “The quality or condition of being legally qualified to perform an act.” And according to the Law Dictionary, being incompetent is “the condition of lacking the ability to handle one’s affairs due to mental or physical incapacity.” A well understood principle of contract law is “Capacity to contract means the legal competence of a person to enter into a valid contract. Usually the capacity to contract refers to the capacity to enter into a legal agreement and the competence to perform some act. The basic element to enter into a valid contract is that s/he much have a sound mind”
In the end I really have to use my best judgment to decide if someone is competent. If the signer is awake, can explain what they are signing, and can carry on a conversation with me, they should be considered competent.