Legal Question in Elder Law in California

Validity of Durable Power of Attorney for Health

My Aunt (my father's sister) as been designated as my father's health agent under a Durable Power of Attorney for Health, executed 9/21/00 (Wolcotts Form, 1999). This document was only notarized and not witnessed. The form itself has specific language/terms that REQUIRE two qualified witnesses to be valid. I have heard that a notary in lieu of witnesses is acceptable regardless. Is this true even though the terms of the document say differently? If true, when did the law change to replace notaries for witnesses and is the law it retroactive? Thank-you


Asked on 7/15/02, 1:02 pm

2 Answers from Attorneys
Chris Johnson Christopher B. Johnson, Attorney at Law

Re: Validity of Durable Power of Attorney for Health

California durable power of attorney law requires the notarization OR two witnesses, but if the document actually requires the two witnesses as well, it may be invalid, but the standard forms usually have the "either/or" designation.

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Answered on 7/15/02, 1:15 pm
Sharon R. Werbel Law Offices of Sharon R. Werbel

Re: Validity of Durable Power of Attorney for Health

An Advance Health Care Directive may be acknowledged before a notary public as alternative to witnessing. Probate Code Sections 4674(c). None of the witnessing pvovisions of Probate Code Sections 4674 (c)-(f) apply to a notary public. See Probate Code section 4674(g). Effective July 1, 2000, powers of attorney for health care are governed by the Health Care Decisions Law, Div. 4.7 of the Probate Code (Probate Code sections 4600 - 4805).

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Answered on 7/15/02, 1:29 pm


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