The UPOAA and Witnesses
New Mexico and Idaho were the first states to adopt the UPOAA, followed by Nevada, Maine and Colorado. Seven additional states introduced bills before the legislature in 2009. The Uniform Power of Attorney Act requires two witnesses to the signing of the Power of Attorney, and these witnesses must be unrelated, disinterested and meet very specific requirements. In order for a Power of Attorney to be portable, or to be effective from one state to another, it is important to follow the narrow interpretation of the witnesses allowed. Some states still require just one witness, but in order to support validity of the Power of Attorney in any state, a University of Richmond law review article suggests using two disinterested and unrelated witnesses.
Ineligible Witnesses in Some States
A North Carolina State University review of the Advance Instruction for Mental Health Treatment in that state reports that a person appointed as agent, the principal's doctor, a mental health service provider or a relative of the provider, the owner or operator or relative of an owner of a facility in which the principal is a patient, or a relative by blood, marriage or adoption are all excluded.
Texas Health & Safety Code § 166.003 has a requirement of two witnesses, but there are different standards for the two. Ineligible witnesses are persons designated to make treatment decisions, a person related by blood or marriage, a person entitled to any part of the estate, the attending physician or his employees, an employee of a health care facility where the principal is a patient and anyone who may have a claim against the principal's estate. Only one of the witnesses has to meet these restrictive requirements in Texas for the Power of Attorney to be valid.
Two Witnesses and a Notary with the Principal and Agent
For the most effective and portable Power of Attorney, utilize the rules promulgated by the UPOAA in the selection of the witnesses, and choose witnesses who meet the requirements of the state where the signing occurs. Comply with both the state and the uniform law. Have the signature of the principal notarized, as there is a presumption that an acknowledged signature is valid. An article in the University of Richmond Law Review suggests that a Durable Power of Attorney should explicitly state that the agent's powers survive the principal's incapacity to act. Under the UPOAA Section 104, survivability of the powers is implicit, but for portability and for states that have not enacted UPOAA, this should be in the Power of Attorney language.
- Stetson University: Durable Powers as an Alternative to Guardianship (PDF)
- North Carolina State University: A Critical Analysis of North Carolina's Advance Instruction
- University of Houston School of Law: New Statutory Rules for Witnessing Advance Directives
- University of Richmond Law Review: Uniform Power of Attorney Act
- Georgetown University: National Reference Center: Living Wills and Durable Power of Attorney
- A Warning Sign for Elderly People. image by daseaford from Fotolia.com