In this episode of Info Series, I’m talking about a problem that I run in to surprisingly often: Does a Power of Attorney or Durable Power of Attorney in California need to be notarized in order to be valid?
I recently helped an elderly client execute a Durable Power of Attorney and the client had me present it to his nationwide bank as well as his previous employer from whom he is receiving a retirement pension. Both the bank and the employer tried to convince me that the Durable Power of Attorney needed to be notarized.
Fortunately, I’ve looked this question up before and the answer lies in California Probate Code sections 4121 and 4122. Section 4121 begins by saying that “A power of attorney is legally sufficient if all of the following requirements are satisfied:” 4121’s subsections are listed as:
a. The power of attorney contains the date of its execution
b. The power of attorney is signed either (1) by the principal or (2) in the principal’s name by another adult in the principal’s
presence and at the principal’s direction.
c. The power of attorney is either (1) acknowledged before a notary public or (2) signed by at least two witnesses who
satisfy the requirements of section 4122.
Section 4122 lists the following requirements for witnesses:
a. The witnesses shall be adults.
b. The attorney-in-fact may not act as a witness.
c. Each witness signing the power of attorney shall witness either the signing of the instrument by the principal or the principal’s
acknowledgment of the signature or the power of attorney.
Thus, under California Probate Code section 4121(c), a Power of Attorney or Durable Power of Attorney in California can be either signed by two witnesses or notarized in order to be valid. You can do both, but statute says you don’t need to.
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