Can a Power of Attorney be signed by two witnesses or does it have to be notarized? My uncle will be signing with a mark

Asked over 3 years ago - Downey, CA

He is slowly becoming incapacitated.

Attorney answers (4)

  1. David James Robinson

    Contributor Level 5
    Best Answer
    chosen by asker

    Answered . The individual signs the Power of Attorney in the presence of two witnesses. The two witnesses sign immediately after the person giving the power signs. Ideally, this is done in front of a Notary Public. Your uncle is "signing with a mark." I would definitely have a Notary present for this event.

    It is important to note the history of witnessing a signature -- the witnesses are witnessing that the individual is actually signed by their own hand or at their direction and that they were of sound mind, knew the nature of their action and the document they were signing. That is what is "witnessed" and that is what a witness could be called to testify about in a potential probate hearing or will challenge. The Notary adds a level of state authority to the process. The Notary should not allow the signatures to be done if the individual granting the power doesn't appear to have capacity.

  2. Janet Lee Brewer

    Pro

    Contributor Level 17

    Answered . While the California probate code does permit validation of a financial power of attorney by having 2 witnesses witness the signature, I believe that most financial institutions will balk at honoring it ... it's hard enough to get them to accept a POA that's been notarized. And if your uncle will be signing by mark (which has its own set of rules that need to be followed), you're asking for problems if you don't have the POA notarized.

    If your uncle will be signing a health care POA (aka Advanced Health Care Directive), there are specific code provisions regarding having 2 witnesses witness his signature. If he's in a health care facility, then you will also need to have a patient ombudsman present and act as a witness.

    The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

  3. Brian Michael Mcdonald

    Contributor Level 6

    Answered . This reply is not intended to create an attorney-client relationship and does not constitute legal advice. It is general information.
    In California, a Durable Power of Attorney is required to be notarized (Probate Code 4401). A power of attorney to transfer an interest in real property must be recorded and to be recorded, it must also be notarized.
    It is generally a good idea to have the signing of the power of attorney witnessed but it is not required.

  4. Eliz C A Johnson

    Contributor Level 17

    Answered . I am in California. It depends on whether you are talking about a power of attorney for health care decisions or asset management. As stated above, the rules are different. I recommend notarizing asset management POA in most circumstances and would here, especially if he is signing with a mark. There are special requirements to sign with a mark and you need to heed them. Capacity is an issue. You will want to be SURE that he has capacity when you do this because you will have witnesses to testify here if it becomes an issue later.

    Use the AVVO.com web site to find an attorney in your area. In addition to that, contact your local bar association for referral to an attorney who specializes in this. Often, but not always, the attorney will do an initial consultation free of charge. You will then be in a better position to determine what to do next. Best of luck to you!

    If you liked this answer, click on the thumbs up! Thanks. Eliz. C. A. Johnson Post Office Box 8 Danville,... more

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