21 Jun Making sure your ‘power of attorney’ is legal

Q. Are two witnesses required for a durable power of attorney in New Jersey, or is a notary signature sufficient? I’ve seen witnesses mentioned as a requirement in New Jersey, but LegalZoom seems to think that only the notary is required. Who is correct?
— Unsure

A. Let’s get down to the details.

A durable power of attorney is a written document by which an individual – the principal – grants the authority to one or more other individuals – the agent or attorney-in-fact – to perform specified acts on behalf of the principal whether or not the principal is under a disability, said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park.

The document generally deals with the principal’s property or finances rather than health care, she said.

“The document must be signed by the principal and his or her signature should be witnessed by one subscribing adult witness and must be acknowledged before a notary or other person authorized to take an acknowledgement, such as a New Jersey attorney,” Romania said.

The subscribing witness would be called upon to “prove” the document, meaning to 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, she said.

Sometimes having two witnesses is better than having one witness, Romania said.

Additionally, she said, some states require powers of attorney to be signed by the principal and two witnesses to be valid. Therefore, particularly if the document is intended to be used in such a state, two subscribing witnesses are used so that the document is more readily recognized in such other states even though it’s not necessary in New Jersey.

“The acknowledgement is particularly important if the power of attorney is being used in connection with real estate transactions because it must be recorded and a document must be acknowledged in order to be recorded,” she said.

Let’s also cover what you’d need for health care with an advance directive or health care power of attorney.

This is a written document by which an individual appoints a health care representative to act on his or her behalf, Romania said.

“An advance directive for health care is effective if either signed in the presence of two subscribing adult witnesses or acknowledged before a notary or other person authorized to take an acknowledgment,” she said.

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