Who can Act as A Witness to a Power of Attorney?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Power of Attorney Lawyer

To be a lawful witness of a legal document in New Jersey a person must be over the age of 18, be of sound mind meaning not having a mental disability or prior determination of incompetence, be able to understand that they are witnessing the signature of a binding, legal document and serve as a witness voluntarily, (e.g., not being unduly pressured to witness the document). In addition, the witness cannot be the signor of the document or be the person being named as the attorney-in-fact in the document; and he or she must be physically present to witness the actual signing of the document. Some legal documents also require the witness to be in the presence of a notary public.

While some states require that durable power of attorney be recorded with the local county clerk, New Jersey is not one of those states.

A durable power of attorney can be “effective upon execution,” or can be “effective upon disability,” in which case a physician must certify the existence of the disability. Until a doctor’s signature is obtained the attorney in fact is not yet empowered to act. Because nobody should be required to guess about something as important as this, I would always be clear when a doctor’s certification is requested. Finally a power of attorney continues to exist until the death of the agent (maker) of the power. I added this note just in case a reader is unclear about a Power of Attorney designation which “lasts” beyond death. It can’t. It won’t. To discuss your NJ Power of Attorney matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.