The Power of Attorney Rules for Witnesses for a Signing

By Ronna L. DeLoe, Esq.

The Power of Attorney Rules for Witnesses for a Signing

By Ronna L. DeLoe, Esq.

A power of attorney (POA) is a document that lets you, the principal, appoint someone to act as your agent (also referred to as an attorney-in-fact) in the event you are unavailable or lack the requisite mental capacity to make decisions. They act on your behalf regarding financial matters, health care matters, or both, depending on what powers you give them.

People signing paperwork

The POA document has to follow your state's laws; otherwise, third parties may refuse to recognize your agent's authority. Many states have applicable laws that are significantly different from those in other states, including the rules for having a witness sign the power of attorney documentation.

Signatures and Witnesses

While some states, such as New York, require both the principal and agent to sign the document, others only require the signature of the principal. Similarly, some states require notarization while others need witnesses to attest to the principal's signature on the POA. If you are the principal, you must always sign the document, no matter what state you live in. Signing indicates that you're appointing a certain person as your agent or attorney-in-fact.

Many states require two people to witness your signature. If your state has adopted the Uniform Power of Attorney Act, you must abide by this rule. As of 2018, approximately 25 states have adopted it. Witnesses are generally at least 18 years of age and cannot be the agent, the notary, any relative by blood, adoption, or marriage, or a third party who intends to interact with the agent (e.g., medical doctor, banking professional, etc.) They must have mental competency and cannot be someone who will benefit from the POA. The purpose of a witness is to verify that you were mentally competent when you signed it. If you weren't, then it will be deemed invalid.

Notarization and Record

Some states require notarized signatures. Even if your state does not require one, it's good practice to have it. Keep in mind that if you choose to have someone notarize the document, that person can only act as a notary and cannot also act as a witness.

Powers of attorney are not one-size-fits-all. Each state has specific requirements for the document that can vary significantly from neighboring states. Some states require you to record it with the Recorder of Deeds or with your County Clerk's Office, especially if it's a financial or general POA, which allows you to buy and sell real estate. Check with your county office to see if your state requires recording the document.

Some third parties, such as banks, will not recognize the POA unless it's the original document or a certified copy. If you want your agent to act with multiple third parties, it's a good idea to have several certified copies available. You can call the Recorder of Deeds or County Clerk's Office to find out if they certify such documents.

Even if witnesses are not required in your state, it's important to either consider using them or having your POA notarized to confirm proper execution. Checking your state laws is a must if you decide to draft it without witnesses; some states absolutely require two witnesses who meet the requirements set forth above.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.