Witness to POA

[Sunset]

I'm trying to figure out who can be the POA witness so we can bring the right folks to visit Dad.
For some odd reason, Dad had lots of other legal forms all set up, but not durable POA

Below is the IL State form for durable POA where it defines the witness allowed.
However, I cannot fathom which relative is allowed. If they meant no relatives then why didn't they say that

The parts (a),(b),(d) are plain, obvious and easy to understand.
It's the (c) definition that is confusing me.

Would my Mom's sister-in-law be valid for POA for Dad ?

Note: Mom is dead, and so is her brother, I don't even know if sister-in-law is still valid as the connection to Dad is broken

The undersigned witness also certifies that the witness is not:
(a) the attending physician or mental health service provider or a relative of the physician or provider;
(b) an owner, operator, or relative of an owner or operator of a health care facility in which the principal is a patient or resident;
(c) a parent, sibling, descendant, or any spouse of such parent, sibling, or descendant of either the principal or any agent or successor agent under the foregoing power of attorney, whether such relationship is by blood, marriage, or adoption;
or (d) an agent or successor agent under the foregoing power of attorney.

 

[OldShooter]

Witnesses can be critical if someone challenges the POA in court, arguing that Dad was coerced or was not competent when he signed. If there is any chance of a future dispute you may want to use Dad's attorney or get the attorney's advice on whom to use.

 

[RetireeRobert]

I'm trying to figure out who can be the POA witness so we can bring the right folks to visit Dad.
For some odd reason, Dad had lots of other legal forms all set up, but not durable POA

Below is the IL State form for durable POA where it defines the witness allowed.
However, I cannot fathom which relative is allowed. If they meant no relatives then why didn't they say that

The parts (a),(b),(d) are plain, obvious and easy to understand.
It's the (c) definition that is confusing me.

Would my Mom's sister-in-law be valid for POA for Dad ?

Note: Mom is dead, and so is her brother, I don't even know if sister-in-law is still valid as the connection to Dad is broken

The undersigned witness also certifies that the witness is not:

(c) a parent, sibling, descendant, or any spouse of such parent, sibling, or descendant of either the principal or any agent or successor agent under the foregoing power of attorney, whether such relationship is by blood, marriage, or adoption;

I do believe that your Mom's sister-in-law would be a valid witness to your Dad's POA. That Illinois law you cite voids: a "sibling", but you Mom's brother was not a "sibling" of your Dad. The law also voids "any spouse" of such "sibling". But your mom's brother's spouse was not married to a sibling of your Dad.

So, I believe your Mom's sister-in-law---your Mom's brother's spouse IS a valid witness to your Dad's POA.

Does Illinois State Bar perchance have any website with Q and A's about various topics? You might scan there to see if this subject is covered.

 

[Sunset]

Witnesses can be critical if someone challenges the POA in court, arguing that Dad was coerced or was not competent when he signed. If there is any chance of a future dispute you may want to use Dad's attorney or get the attorney's advice on whom to use.

Dad's current physical condition makes trips agonizingly painful, and difficult for him right now.

We may go this route, or at least phone the attorney if he is still around.

 

[Sunset]

I'm trying to figure out who can be the POA witness so we can bring the right folks to visit Dad.
For some odd reason, Dad had lots of other legal forms all set up, but not durable POA

Below is the IL State form for durable POA where it defines the witness allowed.
However, I cannot fathom which relative is allowed. If they meant no relatives then why didn't they say that

The parts (a),(b),(d) are plain, obvious and easy to understand.
It's the (c) definition that is confusing me.

Would my Mom's sister-in-law be valid for POA for Dad ?

Note: Mom is dead, and so is her brother, I don't even know if sister-in-law is still valid as the connection to Dad is broken

The undersigned witness also certifies that the witness is not:

(c) a parent, sibling, descendant, or any spouse of such parent, sibling, or descendant of either the principal or any agent or successor agent under the foregoing power of attorney, whether such relationship is by blood, marriage, or adoption;

I do believe that your Mom's sister-in-law would be a valid witness to your Dad's POA. That Illinois law you cite voids: a "sibling", but you Mom's brother was not a "sibling" of your Dad. The law also voids "any spouse" of such "sibling". But your mom's brother's spouse was not married to a sibling of your Dad.

So, I believe your Mom's sister-in-law---your Mom's brother's spouse IS a valid witness to your Dad's POA.

Does Illinois State Bar perchance have any website with Q and A's about various topics? You might scan there to see if this subject is covered.

I'll check to see if the IL State Bar has such a thing.

 

[mountainsoft]

My mom assigned me as her Power of Attorney when she had her stroke in 2017. The POA was set up in Oregon, and the only "witness" was the Notary Public who signed the POA.

You're basically just saying someone watched you sign the document and the signature wasn't forged. I would think any third party who doesn't have a stake in the legal matters of the document would be fine as a witness. No family members, employer/employees, personal lawyer, etc.

 

[Sunset]

My mom assigned me as her Power of Attorney when she had her stroke in 2017. The POA was set up in Oregon, and the only "witness" was the Notary Public who signed the POA.

You're basically just saying someone watched you sign the document and the signature wasn't forged. I would think any third party who doesn't have a stake in the legal matters of the document would be fine as a witness. No family members, employer/employees, personal lawyer, etc.

Here in IL, there has to be a witness besides the Notary Public.

I have a Notary Public who will visit, but would prefer for the witness, someone who is not a stranger due to awkwardness and Covid concerns.

 

[RetireeRobert]

Here in IL, there has to be a witness besides the Notary Public.

I have a Notary Public who will visit, but would prefer for the witness, someone who is not a stranger due to awkwardness and Covid concerns.

Notary Publics must encounter this witness situation repeatedly. Call the Notary Public and ask if they know who qualifies for "disinterested" witnesses---such as your Mom's brother's wife.

 

[Stormy Kromer]

I am a notary public in a small town in MN. I have visited people in their homes, hospitals, nursing homes and in their car outside my office to witness and notarize forms. POA forms are one of the most common.

Have an attorney draw up a form and have a completely disinterested notary public witness it. I've been to court during family disputes over witness forms and can tell you its worth the $250 or so to have it done right by an attorney. Most notary's charge a very small fee, if anything at all. Do not have anyone who is remotely related witness the form, you'd be better off to have a completely unrelated notary public. Most states have a website you can look up notary's by zip code.

 

[pacergal]

Our witness was also the notary public who met with us at the lawyers office.

 

[Stormy Kromer]

I should point out that in MN the only signature that needs to be notarized is the person granting POA. The attorney in fact needs to sign a sample signature, but it does not need to be notarized.


After notarizing hundreds of documents, I highly recommend that people have all legal papers prepared by an attorney and sign them in their office. I've seen too many unsigned or incorrectly signed POA forms and wills show up in my office after a person died and they're completely worthless.

 

[OldShooter]

Our witness was also the notary public who met with us at the lawyers office.

That probably works just fine as far as getting the POA accepted by banks, etc. It may not work so well if you end up in court and the notary is asked whether the signing was the result of undue influence, coercion, or if the signer was mentally competent at the time he/she signed. This is more likely to happen where there is money involved, a beneficiary of the estate feels shortchanged, and the signer was in frail condition or was mentally questionable. If you signed while in good health and living a normal life, then it would be difficult for someone to prevail with a challenge.

IANAL, though, which is why I suggested to the OP that she consult with one to bulletproof the POA. It's not much about forgery.

 

[ExFlyBoy5]

There are a lot of mobile notary services and most will offer witness services as well. Most notaries will not answer specific questions about interpretation of the law (as this would probably be considered the unlicensed practice of law) but a quick search on the Google box will answer this question but a disinterested third party is the key. -Not your attorney and this is NOT legal advice.

 

[OldShooter]

... a disinterested third party is the key. ...

Well, err ... The point in my posts is that if there is any risk that the POA will be challenged, "disinterested" is not adequate. One witness to the signing should be qualified to say that the signature was not coerced, that there was not undue influence, and that the signer was mentally competent at the time he/she signed. There are recognized protocols for assessing competence. More: https://saclaw.org/articles/determining-competency-sign-durable-power-of-attorney/

 

[easysurfer]

What happens if only one valid witness is required but on the POA document one witness is valid and one is not?

If you showed the POA to Judge Judy would she toss out the entire document or say one made the requirement, so okay?

 

[CRLLS]

When we had to have witness, We just had a good friend sign for us. We used NOLO for our documents. IIRC, they suggested not using somebody older, who may not be around to verify their signature if somebody else contests the documents in the future.

 

[Stormy Kromer]

To the OP.


Get a witness that doesn't have anything to gain or lose in the document being signed.


I was a notary as a favor to the attorney buddy of mine that rented space in my office. Great guy. I notarized hundreds of documents for him and never once did he expect me to judge the competency of the person signing the document. He said that wasn't my job. My only job was to put my life on the line that the person signing the document is the person that I personally knew or showed adequate photo identification.


Got called into court once when I notarized a pre-nup. That document required two witnesses and a notary. The two witnesses were DD and DS for the wealthier of the two who ended up filing for divorce. I was the notary. The first thing the other spouse did was challenge the signatures of the relatives. I got drug in too. Going to court is easy, you just tell the truth. I didn't remember signing the document 20 years earlier, but I guaranteed that I saw them both sign the document because I did so 100% of the time. No exceptions. The document stood in court.


Don't get a relative as a witness and get a notary that doesn't have a horse in the race.

 

[OldShooter]

... I notarized hundreds of documents for him and never once did he expect me to judge the competency of the person signing the document. He said that wasn't my job ...

No surprise. It's not your job. The place where you get asked that is in court much later when the document is being contested, like in your prenup experience. You get asked the yes or no question "In your opinion was the dear departed mentally competent to sign this agreement?"

You say "No" and the defendant's attorney asks "Mr, Kromer, how did you make this determination ... what are your qualifications to make such a determination, etc.

You say "Yes" and the plaintiff's attorney launches into the same line of questioning.

Then someone moves to strike your opinion as unqualified and the debate moves on with few facts to support the opinions. The wishes of the signer may or may not end up being nullified.

An attorney witness will have kept contemporaneous notes and will have made the determination according to some standard protocol.

I am somewhat familiar with this stuff from DW's war stories. She was an SVP in a megabank investment and trust department and was very careful about having the right witnesses when something had to be signed. IIRC she often tried to use the signer's doctor as a witness when there was any question of competence. Doctors have protocols for this too.

 

[Stormy Kromer]

oh I know what you mean. I have been in the hot seat in court many times and I always told the absolute truth. I was asked once about my opinion of a person's capacity and I told them exactly what I saw. "I am a farmer with a notary stamp, not a Doctor". " I don't remember what I was doing that afternoon in 1992 when they signed the papers...but I can bet my life that it was them that signed it. Otherwise I never would have signed it.


I didn't make enough on my notary commission to buy a cup of coffee in 40 years.


Witnesses and notaries are only required to personally guarantee that the person that signed the document is the person that signed it. Nobody can guarantee the person was in their right mind or being coerced. Otherwise I never could have notarized a pre-nup or divorce agreement...…


It's not the notary or witnesses' job to guarantee to the world that everyone is telling the truth or in their right mind... it's just to guarantee that they are the person signing the document.


Its your own job to tell the truth.

 

[ExFlyBoy5]

Well, err ... The point in my posts is that if there is any risk that the POA will be challenged, "disinterested" is not adequate. One witness to the signing should be qualified to say that the signature was not coerced, that there was not undue influence, and that the signer was mentally competent at the time he/she signed. There are recognized protocols for assessing competence. More: https://saclaw.org/articles/determining-competency-sign-durable-power-of-attorney/

OK. You are right. I am wrong. I will take my law license and go shred it now.