Who Can Witness a General Power of Attorney?

The laws governing the granting and revocation of power of attorney vary by state. Therefore, each state can create different rules for each subtype of power of attorney (POA). However, there are several common types of POA:

A General Power of Attorney is typically related to representing the grantor’s interests in ordinary situations. The holder of a general power of attorney can make decisions on behalf of the grantor, including signing documents, making financial transactions, and buying and selling assets. For example, if the grantor travels frequently, they may confer a POA on someone who can then be present on their behalf for legal and business reasons. In most states, a general POA becomes void when the grantor becomes incapacitated to preclude the agent from taking advantage of the grantor, who can no longer make or communicate decisions.

A Limited Power of Attorney (in some states, like California) is similar to a General POA in that it is effective as a matter of convenience while the grantor can represent themselves. The difference is that the Limited POA only applies to specified activities. For example, perhaps the POA is valid for paying bills but not for selling assets.

A Health Care POA (also called a healthcare proxy) gives the agent authority to make medical decisions, including what treatments to pursue, whether to offer extraordinary intervention during a crisis, and end-of-life determinations. This kind of grant usually takes effect when the grantor cannot make or communicate decisions personally.

A Durable POA is a General or Limited POA that specifically stays in effect following the grantor's incapacitation. An excellent example of how a Durable POA would be employed is when a spouse has POA for their partner. A Durable POA allows the spouse the authority while the individual is capable and following any diminished capacity.

How do the provisions vary by state?

While each state can govern POA designations and rules, most have similarities. There is a Uniform Power of Attorney (UPOAA) template that 28 states have adopted since its original creation in 1969 (the most recent update was completed in 2006). Among the elements addressed by the UPOAA are the following:

• Who is a valid agent?
• When can an agent begin making decisions on the principal's behalf?
• What powers can be delegated to an agent?
• Compensation for the services an agent provides.
• How a power of attorney relationship can be terminated.
• What are the requirements for a witness?

What are the requirements for a POA witness?

While state requirements vary, one common stipulation is that the witness must be an adult. In some states, the witness can't be related to the grantor. The UPOAA requires that a notary witness any new grant so that standard applies across the states that have adopted the current or a former version of the structure.