An easy guide: witnessing a power of attorney

HomeBlogAn easy guide: witnessing a power of attorney

Nominating a power of attorney (POA) is a difficult decision as the person nominated will be responsible for your legal and financial decisions on your behalf, even if you are no longer able to make those decisions yourself. As required with most legal documents, a witness is necessary for a power of attorney document. 

To ensure that your power of attorney document is legal and valid, a valid witness is required at the signing. If the witness is not valid, this can void the document and cause significant issues in the future. A witness is crucial in this process as they certify that the individuals involved in signing documents are legitimate and who they say they are. A witness is also compulsory as they ensure that the signatories have the capacity and can fully comprehend and accept the document they are signing. 

What is a power of attorney?

A power of attorney (POA), is a decisive legally binding document that allows an individual, known as the principal, to nominate another person as an authority over their financial and legal decisions. It is important to know that the approved individual is not qualified to make decisions regarding your health or personal affairs, and is normally appointed when someone goes overseas. The POA doesn’t necessarily have to be a lawyer, instead someone you trust to manage your financial and legal affairs. 

Who can witness the signing of a power of attorney document?

Although requirements differ from state to state, four general categories of witnessing requirements can be categorised. 

Who can be a witness?

To be eligible to be a witness, the individual must be 18 or older and can completely understand the document that they are signing and the power it gives. The appropriate legislation sets the criteria for eligibility for a person to be qualified.

Who can’t be a witness?

Statutory provisions created boundaries around who is qualified to be eligible as a power of attorney. This means that if you’re under 18 years old, you aren’t eligible. It is also recommended that the person doesn’t have a financial relationship with you or is related to you. If the individual is already the attorney responsible for the POA document, they are also ineligible to be a witness. This is to ensure that a third party is present to ensure that no coercion or abuse of power is occurring.  

How many witnesses are required? 

Once again, it is recommended to check with your state’s current regulations to clarify how many witnesses are required as some states are satisfied with one witness whilst others require two adults.  

Does my witness need to provide a certification?

Some states and territories have outlined in their legislation that witnesses have a statutory duty to certify that the principal appeared to have the capacity to make the document. If the witness has any doubts regarding the principal’s ability to comprehend and understand the document they are signing, they are then obligated to take reasonable steps to confirm their understanding and mental capacity.

Legal advice

A power of attorney is not legally valid if there is no witness present. Witness requirements differ from state to state and can sometimes be confusing, if you require further assistance in navigating the requirements our sister company Legal Kitz is here to help! They will assist with any legal-related matters, and offer a FREE 30-minute consultation to assist with any of your queries. Additionally, our subscription plan offers employers access to over 150+ legally compliant, employment, and HR-related document templates to take the hassle out of the legalities of being an employer. Click here to find out more about our subscription plan.