Estate planning documents can often be signed without an attorney being present. Some people may prefer the convenience and safety of their home and others may need to sign their documents while hospitalized or traveling. The required formalities for executing documents vary between jurisdictions and types of documents, and it is important to sign your documents properly to ensure their validity. Most estate planning documents need to be signed in the presence of two witnesses. The requirements for the witnesses are usually very detailed and can depend on the type of document being signed. The witnesses should always be at least 18 years of age and competent at the time they are serving as your witness. The witnesses should be physically present and watch you sign the document.
In Washington State, Health Care Directives (Living Wills) and Power of Attorneys may either be acknowledged before a Notary Public or witnessed by two competent adults. However, there may be certain circumstances and jurisdictions where notarization of the document is required. In Washington State, the witness requirements for a Health Care Directive are governed by RCW 70.122.030. The specific rules for a Health Care Directive are:
- The witness cannot be related to you by blood, marriage, or state registered domestic partnership;
- The witness cannot be your attending physician;
- The witness cannot be an employee of your attending physician or a health facility in which you are a patient;
- The witness cannot be entitled to any portion of your estate upon your death under any existing will or codicil, or by operation of law;
- The witness cannot be a person who has a claim against any portion of your estate upon your death at the time of the execution of the directive;
- The witness must know you personally or have been provided proof of identity; and
- The witness must be able to attest to your capability of making health care decisions.
In Washington State, the witness requirements for a Power of Attorney are governed by RCW 11.125.050. The specific rules for a Power of Attorney are:
- The witness cannot be your home care providers;
- The witness cannot be your care providers at an adult family home or long-term care facility where you reside;
- The witness cannot be related to you or your agent by blood, marriage, or state registered domestic partnership; and
- The witness should not be the agent named in the document.
Once you have signed your Health Care Directive and Power of Attorney, make multiple copies of the documents. Keep one with you at home and consider distributing a copy to your physician, your health care provider (hospital or nursing home), your power of attorney (agent), and family members or trusted friends. Finally, don’t forget to send an electronic copy to our offices. We will maintain an electronic copy on behalf of our clients, and we will provide verification that the documents were properly signed.