Durable Powers Of Attorney – To Be Witnessed Or Notarized?

In the past, documents granting a power of attorney were often signed by the Principal, the person granting the power, and acknowledged by the Principal in front of a notary public.  The Uniform Power of Attorney Act adopted by the state of Washington in 2016, RCW 11.125 (the “Act”), provides more flexibility.  It allows for acknowledgment before a notary public or attestation before two or more competent witnesses.  The standards for “competent” witnesses are similar to the standards for witnesses to the signing of a Last Will and Testament.  The witnesses must: (1) not be home care providers for the Principal; (2) not be care providers at an adult family home or long-term care facility in which the Principal resides; (3) not be related to the Principal, or the agent being granted the power, by blood, marriage, or state registered partnership; (4) sign the document granting the power of attorney in the presence of the Principal; and (5) sign that document at the Principal’s direction or request.

Although use of either of these methods can satisfy one of the requirements for a valid power of attorney, and one method may be more convenient than the other at the time the power of attorney document is signed, they may not be of equal value in the long run.  The Act provides that a signature on a power of attorney is presumed to be genuine if the Principal acknowledges the signature before a notary public or another individual authorized by law to take acknowledgments.  The Act does not provide the same presumption if the power of attorney is attested to by two or more witnesses.

The Act also provides more protection to a person who in good faith accepts a power of attorney acknowledged before a notary public or another individual authorized to take acknowledgments.   A person who in good faith accepts an acknowledged power of attorney without actual knowledge that the signature of the Principal is not genuine may rely on the statutory presumption that the signature is genuine.  A person who in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is void, invalid, or has been terminated; that the agent’s authority is void, invalid, or has been terminated; or that the agent is exceeding or improperly exercising their authority may rely on the power of attorney as if the power of attorney is genuine, valid and still in effect; the agent’s authority is genuine, valid and still in effect; and that the agent has not exceeded and has properly exercised their authority.  The Act does not provide the same protection to a person who in good faith accepts a power of attorney that was witnessed by two or more witnesses.

If you need assistance with your estate planning, contact Per Oscarsson or one of the other attorneys in Beresford Booth’s Estate Planning and Probate Group.

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