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

Do-I-Need-Witness-Present-For-POA

By NotaryLive Staff

Published on 01/28/2021

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.

StatePOA Witness Requirements By State & Notarization Requirements 
Alabama
  • 2 adult witnesses
  • Notarization is optional but  highly recommended
Alaska
  • 2 adult witnesses
  • Notarization required
Arizona
  • 1 adult witness
  • Notarization required
Arkansas
  • 2 adult witnesses or a notary public
  • Notarization is optional but highly recommended
California
  • At least 2 adult witnesses and notarization is required.
  • An attorney cannot act as a witness in California
Colorado
  • Witnesses are optional
  • Notarization is optional but highly recommended
Connecticut
  • 2 adult witnesses
  • Notarization is optional but highly recommended
Delaware
  • 2 adult witnesses. → not related, not a spouse, or adoption, or inheriting property under your will or trust
  • Notarization is required
Florida
  • 2 adult witnesses
  • Notarization is required
Georgia
  • 2 adult witnesses
  • Notarization is required
Hawaii
  • Witnesses optional
  • Notarization is optional but highly recommended
Idaho
  • 1 adult witness
  • Notarization is optional but highly recommended
Illinois
  • 1 adult witness
  • Notarization is required
Indiana
  • 2 witnesses OR notarize
  • Notarization is required
Iowa
  • 1 adult witness
  • Notarization is required
Kansas
  • 2 witnesses OR notarize
  • Notarization is required
Kentucky
  • Notarization is optional but highly recommended
Louisiana
  • 2 adult witnesses OR notarize
  • Notarization is required
Maine
  • 2 adult witnesses
  • Notarization is required
Maryland
  • 2 adult witnesses
  • Notarization is required
Minnesota
  • 2 adult witnesses
  • Notarization is required
Mississippi
  • 2 adult witnesses
  • Notarization is optional but highly recommended
Missouri
  • 2 or more adult witnesses
  • Notarization is required
Montana
  • 2 adult witnesses
  • Notarization is optional but highly recommended
Nebraska
  • 2 adult witnesses
  • Notarization is required
Nevada
  • 2 adult witnesses
  • Notarization is required
New Hampshire
  • 2 adult witnesses OR notarize
  • Notarization is required
New Jersey
  • 2 adult witnesses
  • Notarization is optional but highly recommended
New Mexico
  • Witnesses are optional
  • Notarization is required
New York
  • 2 adult witnesses
  • Notarization is required
North Carolina
  • 2 adult witnesses
  • Notarization is optional but highly recommended
North Dakota
  • 2 witnesses OR notarized
  • Notarization is required
Ohio
  • 2 adult witnesses
  • Notarization is  required
Oklahoma
  • Witnesses are optional
  • Notarization is optional but highly recommended
Oregon
  • 2 adult witnesses
  • Notarization is optional but highly recommended
Pennsylvania
  • 2 adult witnesses
  • Notarization is required
Rhode Island
  • 2 adult witnesses
  • Notarization is required
South Carolina
  • 2 adult witnesses
  • Notarization is required
South Dakota
  • 2 adult witnesses OR notarize
  • Notarization is required
Tennessee
  • 2 adult witnesses
  • Notarization is required
Texas
  • 2 adult witnesses
  • Notarization is required
Utah
  • 1 adult witness
  • Notarization is required
Vermont
  • 1 adult witness
  • Notarization is required
Virginia
  • 2 adult witnesses
  • Notarization is optional but highly recommended
Washington
  • 2 adult witnesses OR notarize
  • Notarization is required
West Virginia
  • 2 adult witnesses
  • Notarization is required
Wisconsin
  • 2 adult witnesses
  • Notarization is optional but highly recommended
Wyoming
  • 2 adult witnesses
  • Notarization is required

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. 

 

Power Of Attorney

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.

 

Relevant Blogs

 

 

 

Updated Date: 07/18/2024


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