In 2013, I wrote a post that went over the basic requirements needed to create a Power of Attorney under Section 4121 of the California Probate Code. For clarity, I want to make clear that this is for a financial power of attorney or a non-medical power of attorney.
Section 4121 requires that a Power of Attorney either be (1) notarized, or (2) witnessed by at least two witnesses. From a practical perspective, I always favor the notarization option because it is generally going to be very easy to quickly tell one way or the other if that Power of Attorney is notarized or not. In short, look for the notary’s stamp. On the other hand, if you use the witness option, you could potentially run into a whole host of problems. For instance, suppose there is a problem and the witnesses need to come in and testify about what they actually saw when the Power of Attorney was made. The witnesses might not want to get involved. They might have died already. If you can actually locate your witnesses, what’s going to happen if they simply do not remember what they saw because the Power of Attorney was created ages ago? From the perspective of certainty, speed, efficiency, cost, etc., the notarization option is, in my view, superior.
One common question that arises with witnesses, though, is who can be a witness? More specifically, can the agent who is being appointed under a Power of Attorney also be one of the two witnesses?
The answer to that is no. The governing law for this is Section 4122(b) of the California Probate Code which states:
“The attorney-in-fact may not act as a witness.”
The term “attorney-in-fact” is defined in Section 4014(a) and (b) of the California Probate Code and basically refers to the agent appointed under a Power of Attorney. Section 4014(a) and (b) state:
“(a) “Attorney-in-fact” means a person granted authority to act for the principal in a power of attorney, regardless of whether the person is known as an attorney-in-fact or agent, or by some other term.
(b) “Attorney-in-fact” includes a successor or alternate attorney-in-fact and a person delegated authority by an attorney-in-fact”
As always, I hope you found this helpful. This post was not meant to be a comprehensive discussion of all possible permutations about attorneys-in-fact, who can be a witness to a California financial power of attorney, etc. If you are dealing with a situation involving a California financial power of attorney, please do your own research or find a lawyer in your area to discuss the specifics of your case with. Hopefully the links I provided above will help you do whatever research you feel you need to do.
Good luck.
Andy Chen
Latest posts by Andy Chen (see all)
- California Powers of Attorney – Agent as Witness? - December 6, 2024
- The 3-List Approach to Preparing a First-Time Estate Plan - December 4, 2024
- Seeking Attorney’s Fees in California Civil Cases - July 22, 2024