Signing and Notarizing a Durable Power of Attorney

After you've done the hard work of putting together a durable power of attorney, you must carry out some simple tasks to make sure the document is legally valid. This article explains what to do.

Before You Sign

Before you finalize your power of attorney, you may want to show it to the banks, brokers, insurers, and other financial institutions you expect your attorney-in-fact to deal with on your behalf.

Discussing your plans with people at these institutions before your document is final—and giving them a copy of the durable power of attorney, after you sign it, if you wish—can make your attorney-in-fact's job easier. It can also make your job easier: If you present your signed power of attorney form and it's rejected, you'll have to redo at least some of your work.

An institution may require that you include specific language in your durable power of attorney, authorizing the attorney-in-fact to do certain things on your behalf. Other institutions may have their own form for you to use. You may have to follow their rules if you want cooperation later. If you don't want to change your durable power of attorney, find another bank that will accept the document as it is.

How Do You Sign a Power of Attorney

A durable power of attorney is a serious document. To make it effective, you must observe certain formalities to make the document legal. The first step is signing the power of attorney in front of a notary public using your full legal name. That's the name that appears on documents such as your driver's license, passport, bank accounts, and real estate deeds. If you've used more than one name in these documents, you can list all of them in your power of attorney.

Notarizing a Durable Power of Attorney

In most states, the law requires notarizing a power of attorney to make the durable power of attorney valid. But even where law doesn't require it, custom usually does. A durable power of attorney that isn't notarized may be rejected by people with whom your agent tries to deal.

Why does a power of attorney need to be notarized? Notarization verifies your identity and guards against fraud. It reassures the people your agent works with that you are who you claim to be and that you intended to give these powers to your agent. The notary is also required to keep a record of the transaction, which can help if an argument later arises about the validity of a document.

The notary public will watch you sign the durable power of attorney and then sign it, too, and stamp it with an official seal. The notary will want proof of your identity, such as a driver's license that bears your photo and signature. The notary's fee is usually inexpensive—less than $20 in most places.

It won't be hard to find someone who can notarize a power of attorney; many notaries advertise online or in the yellow pages. Or check with your bank, which may provide notarizations as a service to customers. Mailbox stores, real estate offices, and title companies may also have notaries.

If needed, you may find a notary who will come to you. In some states, you can even have your document notarized on a video call. To find out what is possible in your area, call a few local notaries and ask what services they provide. Expect to pay a reasonable extra fee for mobile and remote notary services.

Witness Requirements for a Power of Attorney

Most states don't require you to sign your durable power of attorney in front of witnesses. Your lawyer will know the rules for your state, or if you're making a DIY POA with a program like WillMaker, the program should clearly explain the rules for your state. Whether or not your state requires witnesses, it doesn't hurt to have a witness or two watch you sign and then sign the document themselves.

Witnesses' signatures may make the power of attorney more acceptable to lawyers, banks, insurance companies, and other entities that the agent may have to deal with. One reason for this is that some other legal documents with which people are more familiar—including wills and some health care directives—must be witnessed to be legally valid.

Witnesses can serve another function, too: If you worry that someone may challenge your capacity to execute a valid durable power of attorney later, witnesses can testify that you knew what you were doing when you signed the document.

The witnesses must be present when you sign the document in front of the notary. They will sign a witness statement at the end of your document, confirming that they meet the requirements to be a witness. Some people confuse this with a power of attorney witness affidavit form. An affidavit is a form that your witnesses or attorney-in-fact could be asked to sign later, if someone wants proof that a witness watched you sign your document or that your POA is still in effect.

States That Allow You to Choose Notarization or Witnessing

If you live in California, Michigan, South Dakota, or Washington, your durable power of attorney is valid if you have it notarized or if you sign it in front of two witnesses. Some people feel most comfortable using both methods together, but you are legally required to choose only one.

When choosing a method, there's one important consideration to keep in mind. If your power of attorney grants your attorney-in-fact authority over your real estate, you should have your document notarized. You will have to put a copy of your document on file in the county recorder's office, and to record your document, it must be notarized.

What to Do After Signing Your Durable Power of Attorney

When you've completed your durable power of attorney for finances, you have just a few more things to do.

Record Your Power of Attorney

You may need to put a copy of your durable power of attorney on file in the land records office of the counties where you own real estate, called the county recorder's or land registry office in most states. The process is called "recording," or "registering" in some states.

Only South Carolina requires you to record a power of attorney for it to be durable—that is, for it to remain in effect if you become incapacitated. (S.C. Code Ann. § 62-8-109.)

In other states, you must record the power of attorney only if it gives your attorney-in-fact authority over your real estate. Essentially, this means you must record the document if you granted the real estate power. If you don't record the document, your attorney-in-fact won't be able to sell, mortgage, or transfer your real estate.

County land records are checked whenever real estate changes hands or is mortgaged; if your attorney-in-fact attempts to sell or mortgage your real estate, there must be something in the records that proves authority to do so. Recording makes it clear that the agent has power over the property.

There is no time limit on when you need to record a durable power of attorney. If you've created a document that won't be used unless and until you become incapacitated, you may not want to record it immediately. Your attorney-in-fact can always record the document later.

Even if recording is not legally required, you can do so anyway; officials in some financial institutions may be reassured later on by seeing that you took that step.

Where to Record Your Power of Attorney

In most states, each county has its own office for a recorder or registry of deeds. If you're recording to give the attorney-in-fact authority over real estate, take the durable power of attorney to the office in the county where the real estate is located. If you want your agent to have authority over more than one parcel of real estate, record the power of attorney in each county where you own property. If you're recording for any other reason, take the document to the office in the county where you live.

How to Record a Power of Attorney

Recording a document shouldn't be difficult, though some counties can be fussy about their rules. You may be able to record your document by mail, but it's safer to go in person. Typically, the clerk makes a copy of your document for the public records and assigns it a reference number. In most places, it costs less than $10 per page to record a document.

Give Your Signed Document to Your Attorney-in-Fact

Your attorney-in-fact will need the original power of attorney document, signed and notarized, to act on your behalf. So, if you want your attorney-in-fact to start using the document right away, give the original document to the attorney-in-fact. If you've made a durable power of attorney that won't take effect until later, you may choose not to give the original document to your agent now, but be very sure that they can easily access it when the time comes. Do not, for example, put the document into a safe deposit box at your bank, because your agent will need the document to get into the box.

If you named more than one attorney-in-fact, give the original document to one of them. Between them, they must work out the best way to prove their authority. For example, they may decide to visit some financial institutions or government offices together to establish themselves as your attorneys-in-fact. Or they may need to take turns with the document. Some agencies, such as the IRS, will accept a copy of the document, rather than the original. Such flexible policies make things easier on multiple attorneys-in-fact who need to share the original document.

Make and Distribute Copies

If you wish, you can give copies of your durable power to the people your attorney-in-fact will need to deal with—in banks or government offices, for example. If the durable power is in their records, it may eliminate hassles for your attorney-in-fact later because they will be familiar with the document and expect your attorney-in-fact to take action under it.

If your power of attorney won't be used unless and until you become incapacitated, however, it may seem premature to contact people and institutions about a document that may never go into effect. It's up to you.

Be sure to keep a list of everyone to whom you give a copy. If you later revoke your durable power of attorney, notify each institution of the revocation. To learn more, see When a Power of Attorney Ends.

Keep Your Document Up to Date

If you make a power of attorney that your attorney-in-fact won't use unless you become incapacitated, it's a good idea to revoke it and create a new one every five to seven years, especially if your circumstances have changed significantly. A durable power of attorney never expires, but if the document was signed many years before it is used. The agent might have more difficulty getting banks, insurance companies, or people in government agencies to accept it.

It's especially important to review your durable power of attorney if significant changes occur in your life. For example, if the person you named as your agent moves far away, becomes ill, or is no longer closely involved with your life, you should appoint someone else to serve. To do that, revoke the old power of attorney and prepare a new one.

More Information About Durable Powers of Attorney for Finances

To learn more about durable financial powers of attorney, see the following articles:

• When Does a Durable Power of Attorney Take Effect?
• What Powers Can a Financial Power of Attorney Include?
• Attorney-in-Fact: Meaning, Powers, and Responsibilities
• Choosing an Attorney-in-Fact

You can learn more about making WillMaker’s durable power of attorney for finances in WillMaker’s Legal Manual.