02 Aug What makes a power of attorney legal in N.J.?
Q. I’m finding conflicting information on what’s needed for a durable power of attorney in New Jersey. Can you explain what’s needed with witnesses and whether any notarization can be done in a different state?
A. We’re glad you asked.
A power of attorney is an important document that you want to get right.
NJSA 46:2B-8.9 provides that a power of attorney must be in writing, duly signed and acknowledged, and notarized, said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park.
The acknowledgement may be taken by an authorized individual in New Jersey or in any other state or foreign jurisdiction, she said.
“There is no witness requirement for a power of attorney,” she said. “However, should the validity of the document be called in question, a witness would be needed to swear that he or she witnessed the maker of the instrument execute the instrument as the maker’s own act, therefore, although not necessary, it is generally good practice to have a witness on the power of attorney.”
Moreover, Romania said, because a deed needed to be witnessed and notarized historically, if you were using a power of attorney to sign a deed, the power of attorney needed to be similarly executed to be recorded with the deed.
Finally, because many other state statutes require witnesses — for example, the New York power of attorney statute requires two witnesses — many financial institutions look for witnesses on the document and will question a document without a witness, she said.
“So if you want the document to pass inspection expeditiously with less explanation, regardless of `legality,’ it may be easier to have a witness and notary when possible, particularly if the document is to be utilized in other states,” Romania said.
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This story was originally published on Aug. 2, 2021.
NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.