Rules and Restrictions on the Power of Attorney Witnesses in California
California requires that the signature of the principal 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 principal signing the document or the notary’s acknowledgment. A notary can notarize the durable power of attorney in addition to it 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 principal. This statute is intended to protect the principal 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 California durable power of attorney witness. This excludes daughters-in-law and stepchildren from witnessing a power of attorney document. Nor may adopted family members act as witnesses.
No one who is a beneficiary of the principal’s estate can be a witness to the power of attorney. Thus, for example, if someone is planning on leaving money to lifelong employees upon their death, these employees cannot act as witnesses even if they are unrelated to the principal by blood.
A California power of attorney witness must be an adult. All witnesses must also be mentally competent. For example, you cannot have an elderly family friend who may have dementia or someone with a recorded mental illness witness the document.
Witnesses cannot be paid for the act of witnessing the document. The power of attorney witnesses cannot include the attorney who drafted the power of attorney document.
Anyone who does not fall into these exclusions can act as a 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 principal is drugged, suffering from dementia, or in fear of any other parties.
What Are Witnesses Expected to Do?
Each witness must sign the document and include their full legal names on the power of attorney form. In addition, witnesses are expected to include their complete addresses. 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 the state 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 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 principal’s relative uses someone else’s ID to sign as the independent witness, this is an act of fraud.
Laws Regarding the Power of Attorney 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 acknowledgment form is described by the California Probate Code, section 4128. California requires separate healthcare power of attorney documents from financial power of attorney documents. Therefore, you can sign them at the same time and use the same witnesses for each.
