A durable power of attorney is a written document, whereby a person (“the principal”) can authorize or grant authority to another individual (or individuals, called the “agent” or the “attorney-in-fact”) to perform certain tasks on behalf of the principal, whether or not the principal is under a disability.
nj.com’s recent article, “Don’t mess up this estate planning document,” says that whether two witnesses are required for a durable power of attorney in New Jersey or whether a notary signature alone is sufficient, typically depends on whether the POA deals with the principal’s property or finances or if it deals with health care.
The document must be signed by the principal and his or her signature should be witnessed by one subscribing adult witness. It also must be acknowledged before a notary or another person is authorized to take an acknowledgment, such as a New Jersey attorney.
The subscribing witness may be called upon to “prove” the document. This means he or she must swear that the principal executed the document freely and that to the knowledge of the witness, the principal knew what he or she was signing.
In some states, powers of attorney must be signed by the principal and two witnesses to be valid. Especially when the document is intended to be used in that state, two subscribing witnesses are used, so that the document is more readily recognized.
This acknowledgment is especially important if the power of attorney is being used in connection with real estate transactions. That’s because it must be recorded, and a document must be acknowledged in order to be recorded.
In addition, an advance directive or health care power of attorney is a similar written document that a person uses to designate an individual as their health care representative to act on his or her behalf. An advance directive for health care is effective if either signed in the presence of two subscribing adult witnesses or acknowledged before a notary or other person authorized to take an acknowledgment.
Reference: nj.com (June 21, 2018) “Don’t mess up this estate planning document”
Kyle Robbins
Kyle Robbins is the founder and sole owner of The Law
Offices of Kyle Robbins. He received his J.D. with honors from the University of Texas School of Law and his B.S. in Food Chemistry and Microbiology from Oklahoma State University.
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