Do I Need A Witness Present To Have A Durable Power Of Attorney?

KEY TAKEAWAYS 

• Witness requirements for a durable power of attorney (POA) vary by state—check your state's laws
• Some states require notarization or witnesses to verify mental competence
• Consult an attorney for guidance on POA requirements in your state

Do I need a witness present for a durable power of attorney? 

The simple answer to this question is that it depends on the state in which the power of attorney document is being signed. So, it is imperative to check with your state’s laws before beginning the process of having your power of attorney drafted. 

1. What is a Power of Attorney (POA)?

A power of attorney (POA) is a document that allows you, the principal, to appoint someone to act as your agent in the event you are unavailable or unable to make decisions of sound mind on your own. Your agent will act on your behalf regarding financial or health matters, depending on the powers you hand over.

2. Why do Power of Attorney laws vary?

As previously stated, the POA document must follow your state's laws, or you run the risk of third parties refusing your agent’s authority. When it comes to notarizing your POA, or having a witness present during the time of the signing, each state has its own laws that must be followed to ensure your power of attorney is effective when it’s needed most. 

Regardless of the state you live in, you (the principal) are required to sign the power of attorney, indicating you are appointing a certain person as your agent or attorney-in-fact. From there, it is a state-by-state basis on whether you will need to have your power of attorney document notarized, which can be done online at NotaryLive.com. Whether or not you are required to notarize your POA or have a witness present by law in your state, it is still good practice to have it done to ensure proper execution.

3. POA Witness Requirements By State 

Below is a list of the power of attorney witness requirements per state. 

Remember: The witness must be 18 years of age, cannot be the agent, the notary, any relative by blood, adoption, or marriage, or a third party who has plans to interact with the agent – the witness must also have mentaly capacity and CANNOT be someone who will benefit from POA.

Remember, these requirements can change, so it's always best to consult legal resources or an attorney for the most up-to-date information specific to your state. 

4. What is the Uniform Power of Attorney Act?

As of 2020, 28 states have enacted the Uniform Power of Attorney Act, which requires two witnesses to be present at the time of you providing your signature to the POA document. The reason for the witness is to verify that the principal was in fact mentally competent at the time of the signing. The witness generally must be 18 years of age, and CANNOT be one of the following; the agent, the notary, any relative by blood, adoption, or marriage, or a third party who has plans to interact with the agent. The witness must have mental capacity and cannot be someone who will benefit from the POA. 

Photo by Brooke Cagle on Unsplash

Once again, it is extremely important to research your state’s laws in regard to witnesses, signatures, and notarization of your Power of Attorney document. This is an important moment in many people’s lives, so it is imperative to make sure you follow every requirement to enact your power of attorney.

**Legal Disclaimer - We are not lawyers or attorneys and do not give any legal advice. Please check with your attorneys, advisors, or document recipients if you have any unanswered questions about your documents.

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