Executing a Durable Power of Attorney Requires Witnesses—How Many?

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 other person authorized to take an acknowledgement, 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 acknowledgement 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.

A similar but different document is the advance directive, also known as a health care power of attorney. This is used to designate a person who can make healthcare decisions on someone’s behalf. In the case of an advance directive, the document must be signed in the presence of two subscribing adult witnesses, or it must be acknowledged before a notary or a person who is legally authorized to take an acknowledgment.

Reference: nj.com (June 21, 2018) “Don’t mess up this estate planning document”