[AZ] Who is allowed to witness the signing of a durable power of attorney?

Lexi, Chatbot

I understand that you're navigating the legalities of a Durable Power of Attorney, which can be quite complex. Is your brother currently in good health and able to understand the implications of signing this document?

Lexi, Chatbot

Have you already discussed this arrangement with your mother, and is she willing to act as a witness?

Brandon

Hi there, and welcome. My name is Brandon, and I'm an attorney. I'll be happy to help you out today. Please note that this discussion is for guidance only and does not constitute an Attorney-Client Relationship. My answers and comments should not be considered legal advice. Please also note that I am human, that I often need to research your answer to give you an accurate response, and that I work with other customers and get up from time to time. So please be patient while waiting for a response. Please feel free to reach out if more than 30 minutes have passed. Could you let me know if your mom is comfortable being a witness?

Brandon

Under Arizona law, a Durable Power of Attorney is governed by (AZ Rev Stat § 14-5501) and related provisions. Here is how execution works in practical terms. In Arizona, a durable power of attorney must be:

1. Signed by your brother while he has capacity.
2. Either notarized or witnessed.
   • If the document is notarized, you do not need a witness. In fact, most attorneys recommend notarization because banks, hospitals, and financial institutions are much more comfortable accepting a notarized document.
   • If the document is not notarized, then it must be signed in the presence of a witness. But the witness cannot be just anyone.

Arizona law says the witness cannot be: 

• The person named as agent under the power of attorney. That would be you.
• The notary, if a notary is being used.
• Anyone who is related to your brother by blood, marriage, or adoption.
• Anyone entitled to any portion of your brother's estate.

This is where your question about your mom becomes important. Because your mom is related to your brother by blood, she cannot serve as the witness under Arizona law. So the short answer is no, your mother should not be the witness.

The safest and cleanest way to handle this is:

• Have your brother sign the document in front of a notary public.
• Do not use a family member as a witness.
• Make sure the document clearly states it is "durable," meaning it remains effective if he later becomes incapacitated. This durability requirement is also addressed under (AZ Rev Stat § 14-5501), which governs when a power of attorney survives a principal's later incapacity.

If you choose to use a witness instead of a notary, that witness should be:

1. An adult
2. Not related to your brother
3. Not named in the document
4. Not someone who would inherit from him

For example, a neighbor, coworker, or family friend who is not related could serve as a proper witness. Also, since you are the named agent, you cannot act as the witness.

Brandon

Yes, that is correct. Under Arizona law, if your brother signs the Durable Power of Attorney in front of a notary public, you do not need a separate witness.

Brandon

You are very welcome. I wish you the best.