Should A Designated Power of Attorney Sign the Document Accepting His/Her Appointment As Agent

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ
Power of Attorney Lawyer

NY requires a principal and agent(s) to sign a power of attorney. In NJ only the principal is required to sign the document.

In my practice I have evolved to require both the principal and witnesses to sign the power of attorney document and have their signatures notarized.

“Some attorneys have the principal’s signature notarized and witnessed and the signature of the witness notarized as well. This is good practice because the referenced statute requires that in order to prove that a power of attorney contains the genuine signature of the principal, a witness must swear that he or she witnessed the principal sign the power of attorney. The signature of the witness, like that of the principal’s must be notarized.

“So, if someone challenges the genuineness of the principal’s signature on a power of attorney, only if the power of attorney contains the signature of a witness whose signature was also notarized is the agent going to be able to prove the genuineness of the principal’s signature in accordance with the provisions of NJSA 46:1402.1. While the agent may be able to prove the genuineness of the principal’s signature in other ways, he will not be able to prove it in accordance with the statute unless there is a witness to the signature.

If a power of attorney is or may be used for real estate transactions, it must be in recordable form. This is because NJSA 46:6-1 requires the recording of powers of attorney used for real estate transactions.

Thus, the power of attorney must be signed by the principal, and his or her signature must be acknowledged (as in, for example, a deed or a mortgage). Witnesses may be a good idea, but witnesses are not a prerequisite for recording. Recording requirements are found in NJSA 46:26A-3.

Execution of the power of attorney document by the attorney-in-fact may likewise be a good idea, but it is not a recording requirement.

Not having the notarized signature of a witness on the power of attorney is not fatal to a power of attorney being “duly signed,” but not having the notarized signature of a witness on the power of attorney makes it more difficult for the agent to prove that the power of attorney was duly signed if someone challenges the genuineness of the principal’s signature. A power of attorney that is signed by the principal and a witness with both of their signatures notarized is a self-contained document that is both duly signed and self-proving.”

To discuss your NJ Power of Attorney matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.