Rules and Restrictions on the Durable Power of Attorney Witness in California
California requires that the signature of the principle of the Power of Attorney must be acknowledged and recorded by a notary or acknowledged by two witnesses. Every witness to the power of attorney document must witness the principle signing the document or the notary’s acknowledgement. The durable power of attorney can be notarized by a notary in addition to being signed in front of at least two witnesses.
Who Can Be a Witness to a California POA?
Witnesses cannot be related to the power of attorney’s principle, the person who is subject to the power of attorney. This statute is intended to protect the principle from having a document handing over control of one’s affairs witnessed and approved by those who benefit from it. Witnesses cannot be related by blood; children, grandchildren, nieces and nephews cannot act as witnesses to a California durable power of attorney. Nor can anyone related by marriage act as a durable power of attorney California witness. This excludes daughters-in-law and step children from witnessing a power of attorney document. Nor may adopted family members act as witnesses.
No one who is a knowing beneficiary of the person’s estate can be a witness to the power of attorney. For example, if someone is planning on leaving money to life long employees upon her death, these employees cannot act as witnesses even if they are unrelated to the principle.
A durable power of attorney California witness must be an adult. All witnesses must be mentally competent. For example, you cannot have an elderly family friend who may suffer from dementia or someone with a recorded mental illness witness the document. Witnesses cannot be paid for the act of witnessing the document. The durable power of attorney California witnesses cannot include the attorney who drafted the power of attorney.
Anyone who does not fall into these exclusions can be a durable power of attorney witness.
Responsibilities of Witnesses
Witnesses are there to confirm that the person signing the power of attorney is doing so freely without undue pressure or threats from family members. The witness should not sign it if they suspect the principle is drugged, suffering from dementia or in fear of the other parties.
What Are Witnesses Expected to Do?
Each witness must sign the document and include their legal names on the power of attorney form. Witnesses are expected to include their full addresses on the form. A court will use this information to locate them and summon them if there are challenges to the durable power of attorney document’s validity. Witnesses do not have to reside in California, but they could be called to California courts to validate the document.
Possible Consequences of Signing
Perjury in California can result in a sentence of up to four years in jail. While this is rare, perjury charges can result in significant fines and criminal charges. It is an additional crime, fraud, to have someone sign the document as someone else who is an impartial witness. For example, if the principle’s relative uses someone else’s ID to sign as the independent witness, this is an act of fraud.
Laws Regarding the Durable Power of Attorney Document in California
The laws regarding the durable power of attorney in California are outlined in the California Power of Attorney Act starting in Section 4000. The notary’s acknowledgement form is described by the California Probate Code, section 4128. California requires separate healthcare power of attorney documents from financial power of attorney documents. You can sign them at the same time and use the same witnesses for each.