Attorney Thomas B. Burton answers the following question:
"What Happens When Power of Attorney is Not Signed by Witnesses and Not Notarized?"
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Today's question comes from Milwaukee, Wisconsin and the reader ask the following:
“What happens if power of attorney was not signed by witnesses and not notarized? My father gave my mom full finances and medical power of attorney in 2017. However, there are no witnessing, the choice is not notarized and it’s not been filed with the court. This is something that he did trying to protect my mom and ensure that his wishes were followed. He was not aware that witnesses and a notary was needed, if he signed it and in 2018, my dad was diagnosed with terminal cancer. Due to him being in home hospice care, I'm going to assume he is no longer legally able to create another POA and have the witness and notary added to it. He has property that needs to be sold, various bank accounts and stocks and bonds. What can my mom do to ensure that she can sell my dad's property, gain control over stocks and bonds and our finances that do not have a beneficiary listed?”
So first of all, I'm sorry to hear about this situation with your father and his declining health. For a power of attorney for finances, it does not require two witnesses to be valid. The power of attorney for healthcare does require two disinterested witnesses and the statutes say, they can't be a healthcare provider, but the financial power of attorney, generally with my clients, they sign it in front of me and I notarize it. Notarizing the power of attorney creates the presumption that the signature is valid. We do that to avoid situations of fraud, someone forging a signature and it’s a good practice to do so.
But you potentially have a valid power of attorney if he did sign it and intended to sign it for financial power of attorney reasons. The trouble is you will likely get some push back from the banks and other financial institutions when you try to use it because they are so used to the common practice of having it notarized. So the thing is the fact that he's in Home Hospice Care does not mean for sure that he could not execute a new power of attorney. The relevant case law here says that if your father has a lucid interval or a moment where he has full capacity, he could sign a new power of attorney and just the fact that he's suffering from a health condition, does not mean he's mentally incompetent. So in order to execute a new power of attorney, all he needs is the mental competency to be aware of his actions and what he's doing or want to do so.
If you think he's still mentally competent, your father thinks so, he could execute a new power of attorney and you could do it in front of a notary just to help you avoid those questions you may have if you try to use the un-notarized power of attorney for finances.
So great question and the differences in law here and what's required between a financial power of attorney and a health care power of attorney and good luck to you with helping work this out for your father and your mother.
Great question and thank you for asking.
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