Does a Durable Power of Attorney Require Witnesses?

by Marie Murdock

    A durable power of attorney is a document that authorizes your appointed agent to sign documents and perform other actions on your behalf. What makes a power of attorney durable is that it remains in effect even after you become mentally incompetent or otherwise unable to manage your affairs. Because a durable power of attorney can give your agent great power over your finances, property or even health care decisions, anyone being asked to rely upon it needs to know that it is genuine and valid. Witnesses or a notary public’s acknowledgement serves as proof that your power of attorney is authentic.

    Financial

    A power of attorney to handle finances may be general, authorizing your agent to perform virtually any action you could perform yourself, such as regularly accessing your bank account, paying bills or signing legal documents for you. Alternatively, a special or limited power of attorney will direct your agent to perform one task or a particular set of named transactions, such as selling a vehicle or selling any land you may own in a particular state or county. Whether general or special, state law determines signing requirements for powers of attorney.

    State Requirements

    States such as Florida require that a financial power of attorney be signed by two witnesses and also notarized, whereas Georgia only requires two witnesses unless the use of the POA involves real estate. Utah requires notarization with no witnesses necessary, while Washington state law requires only the signature of the principal — the person granting the power — on a power of attorney. Regardless of state requirements, attorneys may suggest that your power of attorney be notarized even though it may be witnessed, particularly if it will be used in another state or in a real estate transaction.

    Real Estate

    States may require that a power of attorney used to sell or mortgage property be recorded in the real property records of the county where the property is located. County recording offices may refuse to record a power of attorney that has not been notarized, even if it is witnessed. Closing attorneys and title insurance agents may also refuse to accept a power of attorney that was not properly notarized.

    Health Care

    A health care power of attorney is usually prepared as a separate document and not incorporated into your financial power of attorney. Also referred to as an advance directive, this type of power of attorney may be governed by a different set of laws and requirements from a financial power of attorney. It authorizes your agent to make health care decisions for you, even those involving the withdrawal of life-sustaining equipment or procedures if the document so directs. Many states require two witnesses on a health care power of attorney or require it to be notarized, although you may choose to sign yours in the presence of a notary public.

    Acceptance

    Many states have passed a version of the national Uniform Power of Attorney Act requiring any person or business to accept a power of attorney signed in another state if it meets the signing requirements of that state. This act may also hold a third party liable for attorney's fees and costs incurred while getting a court order as a result of the third party's refusal to accept a properly notarized power of attorney that has been signed in accordance with state law and procedure.

    About the Author

    Marie Murdock has been employed in the legal and title insurance industries for over 25 years. Murdock was first published in print in 1979 and has been writing online articles since mid-2010. Her articles have appeared on LegalZoom and various other websites.