In our community, the ownership of a house or land represents the fruit of a lifetime of hard work. However, deplorable situations occur where the elderly are exposed to family pressure—primarily by children—or the abuse of power to transfer their assets against their true will. In light of this, the question arises: what is the role and protection that a notary must offer, and what are the consequences if this duty fails?
The “Good-Will” Child and Hidden Malice in the Deed
Pressure on an elderly person does not always manifest as open danger or violent threat. Often, malice hides behind a facade of friendliness. Children appear at the notary’s office as a “good-will” child or caregiver, saying they want to help the parents “organize things just in case things go wrong” or “to avoid inheritance problems later.” They may tell the elderly person that it is just a simple administrative paper, or that the father/mother will remain the owner of the house forever.
However, upon reading the fine print of the notarial deed, the reality is entirely different: it shows a total transfer of ownership where the elderly person is left without any real rights, or it grants a broad power of attorney (volmacht) that gives the child absolute freedom to sell or mortgage the house without the parents knowing or being able to do anything about it. The greatest danger here is that the elderly person signs believing they are protecting themselves, without knowing that they have been legally stripped of their estate. This false deceit puts the notary’s indispensable duty to the test: to look beyond the smiles and kind words at the table and analyze the actual consequence of the technical text.
The Notary’s Duty of Care and Investigation (Zorgplicht en Onderzoeksplicht)
A notary is not simply a public official who authenticates a signature or gives validity to a document. According to the legal frameworks of our legal system, the notary has an independent duty of care and investigation to ensure that the will of the person signing is completely free, conscious, and free from any form of pressure or deception.
Before executing a deed involving the assets of an elderly person, the notary is obligated to apply strict control mechanisms:
- Private and Direct Conversation: The notary must interview the elderly person alone, without the presence of children, relatives, or other third parties who may have a financial interest. This is the moment when the notary assesses whether the decision stems from the homeowner’s own desire.
- Mental Capacity Assessment (Wilsbekwaamheid): The notary must verify whether the person is in full possession of their mental faculties to understand the scope and the legal and financial consequences of the deed. If there is any doubt that the elderly person suffers from cognitive decline or dementia, the notary cannot proceed.
- Independent Medical Verification: When there is uncertainty regarding mental health status, the notary is obliged to request an evaluation from an independent medical professional (such as a geriatrician or psychiatrist) who is not the family’s primary care physician.
- Duty of Refusal (Dienstweigeringsplicht): If the notary establishes that there is abuse of circumstances, pressure, deception, or that the transaction is disproportionately detrimental to the elderly person, the notary is legally bound to refuse their service and not execute the deed.
Legal and Disciplinary Consequences for the Notary
If a notary fails in their duty of investigation and executes a deed where abuse of an elderly person took place, the legislation stipulates severe responsibilities for the notary:
- Disciplinary Procedure (Tuchtrecht): The elderly person or affected parties can file an official complaint with the Supervisory Board (Kamer van Toezicht). If negligence is determined, the notary can face sanctions ranging from a reprimand or suspension to final dismissal from office (ontzetting uit het ambt).
- Civil Liability: The notary can be sued in court for damages (onrechtmatige daad). If the elderly person loses their home or estate due to the notary’s lack of care, the notary (or their professional liability insurance) can be ordered to compensate the full financial value.
- Criminal Prosecution (Strafrecht): In extreme cases where the notary was aware of the malice or fraud and consciously cooperated with the illegal transfer, this constitutes a criminal offense (document falsification or complicity in fraud), which can carry prison sentences.
Legal Avenues When a Deed Has Been Executed Under Pressure
In the regrettable event that a notarial deed has managed to pass through manipulation or pressure from a child or relative, the legal path remains open. A lawsuit can be initiated in the civil court (Gerecht in Eerste Aanleg) to request the annulment of the deed (vernietiging van de akte) based on abuse of circumstances (misbruik van omstandigheden), threat, deception, or lack of mental capacity at the time of signing.
The protection of our elderly requires not only the vigilance of the legal and notarial system, but also the awareness of our community to report any attempt at financial abuse against our older adults.
Unfortunately, such cases are happening in Aruba, and the elderly person finds themselves spending a lot of money to go to court to get their house back when children choose to harm their own mother. A warning to notaries who contribute to these steps without taking precautions when an elderly person is of a respected age and without conducting the necessary investigations before executing a deed.