Legal capacity is the ability of a citizen to fulfill legal obligations and acquire subjective rights by his actions and deeds. Citizens who have reached the age of 18 are considered capable. Only a court can make a decision on the incapacity of an adult citizen on the basis of the conclusion of a forensic psychiatric examination.
In the text of the certifying inscription on any document where the notary puts his seal, among other things, the phrase “Identity has been established. The legal capacity has been verified. " The identity of the citizen is established by the notary according to the passport. The situation with the legal capacity is more complicated. A notary is a lawyer, not a psychiatrist. In practice, he cannot draw a conclusion about incapacity, unless the person himself tells him about it.
The "Fundamentals of the legislation of the Russian Federation on notaries" says that, when certifying certain transactions, the notary checks the legal capacity of legal entities and the legal capacity of individuals. But, at the same time, the mechanism of such a check is not specified. On the one hand, a notary is obliged to establish legal capacity, on the other hand, he has no practical ability to do this. Because, the legislation does not provide for his right to order psychiatric examinations or demand any certificates from medical institutions, since such information is a medical secret.
In practice, the notary checks the legal capacity, guided by evaluative concepts, using visual and verbal methods. First of all, the visitor's appearance is assessed, whether his appearance meets generally accepted social norms. Here we can talk about the correspondence of clothes to the season, age, size, situation. But these are all relative categories. An outfit that is too strange can cause doubts, but it cannot indicate any psychological deviations.
Having established verbal contact with the visitor, the notary asks him certain questions of a clarifying nature regarding the purpose of the visit, starts conversations on general topics, thereby determining the consistency of the presentation of thoughts. Some practicing notaries use jokes. The thing is that an inadequate human reaction to humor is one of the first signs of mental abnormalities.
The organoleptic method is also used, based on the perception of the senses, such as smell, touch, sight, hearing. It is applicable in case of alcoholic or drug intoxication of the visitor.
Doubting the legal capacity, the notary has the right to postpone the performance of the notarial act. He can send relevant inquiries to the court to find out whether there is a legally binding decision to declare a person incapacitated.