Skip to main content

Errors in a power of attorney for someone that has been diagnosed with dementia.

Ventura, CA |

A power of attorney was deemed invalid by a financial institution because the notary date was inconsistent with the execution dates on the power of attorney document. The notary date is the 20th of the month. The signature dates are the 2nd of the month. I want to avoid a conservatorship, how do I get past this error?

Attorney Answers 3


  1. Best answer

    Someone needs to educate the financial institution. There is not necessarily an error in the power of attorney. A power of attorney can be signed one day and the signature acknowledged on a different day, as long as the person telling the notary that that is their signature and that they intended to execute the form.

    A power of attorney is legally sufficient if all of the following requirements are satisfied:

    (a)The power of attorney contains the date of its execution.

    (b)The power of attorney is signed either (1) by the principal or (2) in the principal's name by another adult in the principal's presence and at the principal's direction.

    (c)The power of attorney is either (1) acknowledged before a notary public or (2) signed by at least two witnesses who satisfy the requirements of Section 4122.

    The following is the requirement for an Acknowledgment: There is nothing in the code that says the document must be acknowledged on the same day as the document is executed.

    The certificate of acknowledgment must be in the form set forth in Civil Code section 1189.
    In the certificate of acknowledgment, the notary public certifies:
    • That the signer personally appeared before the notary public on the date indicated in the
    county indicated;
    • To the identity of the signer; and
    • That the signer acknowledged executing the document.

    It is also important to point out that a diagnosis of Dementia does not necessarily mean that a person is incompetent to either do their own banking, or to execute a new power of attorney.

    Every situation is different, it is important to discuss your legal issue with a knowledgeable attorney in your jurisdiction. To schedule an appointment with me please contact me at 800 220-4205 or www.MartyBurbankLaw.com


  2. If you can locate the notary have them recertify their notarization. This is a case of form over substance. Affidavits of any witnesses could be used to correct the discrepancy. Or you can contact an elder law attorney to have them meet with the person to see if they have sufficient capacity to execute a new POA.


  3. If the principal still has capacity, a new POA should be drawn up. I can understand the bank's position on this, even though I agree that it is possible to notarize documents based on the principal's acknowledgement. Given possible issues of dementia, however, the bank needs to protect their customer, (and protect themselves from liability).

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

Wills and estates topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics