4.3 Evaluating Signer Competence, Willingness & Lawful Refusal
Key Takeaways
- The handbook instructs the notary to check that the signer understands the nature of the document and appears to act freely.
- Signer and notary must use characters and a language both understand and communicate directly.
- A.C.A. § 21-14-107 permits refusal for any reason, including doubts about understanding, willingness, or communication.
- Refusal should be neutral and based on observed limits, not a medical diagnosis or legal conclusion.
4.3 Understanding, Willingness, Communication, and Refusal
The notary does not decide whether a transaction is wise, but must be able to conduct a meaningful ceremony. The Secretary of State handbook tells the notary to determine that the signer understands the nature of the document, appears to act of free will, uses letters or characters understood by both signer and notary, and communicates directly in a language both understand.
Understanding is functional
The question is not whether the signer can explain every legal clause. The notary is not administering a law exam. The question is whether the signer appears to understand the general nature of the document and the act being performed. A signer who believes a deed is a routine receipt, cannot identify the type of document, or cannot respond to basic questions presents a reason to stop.
Do not diagnose dementia, intoxication, or disability. Describe observable facts: the person could not state what kind of document was being signed, repeatedly changed answers, fell asleep, or could not communicate a voluntary decision. A disability by itself is not incapacity; Arkansas provides lawful procedures for signing by mark and for a physically unable principal.
Free will
The signer should appear to act without coercion. Warning signs include another person answering every question, directing the signer not to read, threatening consequences, or refusing to let the signer speak privately. The notary may ask others to step away so the signer can answer directly. If the notary remains uncertain, refusal is appropriate.
The notary is not required to prove that no private pressure has ever existed. The duty is to make a reasonable assessment during the act and avoid certifying a ceremony that appears involuntary.
Direct communication
The handbook calls for direct communication in a language understood by both signer and notary and for letters or characters understood by both. If that communication is impossible, the notary cannot reliably administer an oath, receive an acknowledgment, or assess understanding and willingness.
Do not invent a general interpreter protocol absent from the handbook. If an interpreter is proposed, the notary should verify current Secretary of State guidance and any transaction-specific law before proceeding. The safest exam answer under the handbook is that signer and notary communicate directly in a mutually understood language.
Statutory refusal authority
A.C.A. § 21-14-107 states that a notary may refuse to perform a notarial act for any reason, including when the notary does not believe the person understands the document, is acting freely, or can communicate directly. This is discretionary authority, not a command to reject every unfamiliar or complex document.
Use consistent, neutral standards. A notary should not treat protected characteristics as evidence of incapacity or fraud. But the statute permits refusal when the notary cannot complete the act with confidence.
| Observation | Appropriate response |
|---|---|
| Signer explains the document's general purpose and answers freely | Continue if all other requirements are satisfied. |
| Companion answers for signer and threatens the signer | Separate the parties if safe; decline if voluntariness cannot be established. |
| Signer has a physical disability but directs a lawful assisted signature | Use the statutory procedure rather than assuming incapacity. |
| Signer and notary have no shared language | Stop; the handbook requires direct communication in a shared language. |
| Signer asks whether the contract is legally favorable | Do not advise; refer the legal question to counsel or the drafter. |
Documenting a refusal
Arkansas does not require a paper journal for traditional acts, but a notary who keeps one may make a brief factual note. Avoid confidential legal details and unsupported accusations. “Declined—unable to communicate directly in a shared language” is more useful than “signer was incompetent.” Do not apply the seal, complete the certificate, or charge for an act that was not performed.
Scenario
An older signer arrives with an adult child. The signer clearly states that the document is a power of attorney, describes its general purpose, answers independently, and requests a signature-by-mark accommodation. The disability does not justify automatic refusal. Follow the mark procedure with the required disinterested witness. If instead the child answers every question and the signer cannot communicate a choice, decline.
Source anchor: Arkansas Secretary of State, Arkansas Notary Public Handbook (rev. 1-2025), “Before Notarizing”; A.C.A. § 21-14-107.
Which factor does the Arkansas handbook tell a notary to evaluate before notarizing?
What communication does the handbook call for?
What refusal authority does A.C.A. § 21-14-107 provide?