The answer is probably no, but check your state law. In my state, an attorney doesn't need to help write the document or be present when it is signed, but there must be witnesses to the signing and there are restrictions on who can be witnesses. If this is for a health-care POA, the hospital probably has someone on staff who can help make sure you're doing the process correctly.
We had a legal POA for financial and Trustee of Trust drawn by a Lawyer. The lawyer had it signed by my brother after interviewing him alone to be certain this was his wishes. The attorney was the Notary Public. It has passed muster in all banks and etc so far. In my state hospitals do not allow any employee, even social workers, to act as witness. This is for financial, or for health or for both? There is also a need to my mind for the POA to continue when the person is NOT any longer cognizant, so I wanted to be certain that language was in there, as my brother diagnosed with a possible early Lewy's dementia, and his condition will deteriorate over time. I felt much safer that we went through an attorney. It wasn't cheap but it's done correctly I think, our main concern.
I am an attorney, licensed in Indiana. You should consult with an attorney in your state, as each state has very different laws.
That said, I'd also recommend searching Legal Zoom or other online sources that give you access to forms and general legal advice. They have charts that provide a lot of information by state. Generally, you must have a notary witness your signature; but a good elder lawyer is the one who advises you on so many other things and is a strong ally throughout the aging process.
Also, having the doctor "say" that someone is cognizant is great; even better is for the doctor to complete the state's form that is an advanced directive/living will declaration. In Indiana, when we were in the process of choosing an assisted living facility, they required us to have the Indiana form filled out by my mom's physician.
Finally, as you go through this process, it is wonderful to put together a file box with her insurance policies, medical information, copies of POAs, copies of her SS card, Medicare card, other health and life policy numbers and contacts, financial data, bank statements, funeral directives and the like. AND, if your mother is computer savvy, or has any passwords, get that information as well.
Finally, a story related to the password issue:
My husband's dear sister was a writer, working on a new book about Abraham Lincoln and one of her ancestors who was a close friend of Lincoln's. In her mid-70s, very healthy, we thought, and much beloved. On Mother's Day this year, she suddenly contracted encephalitis, went into a coma, and never really came back before dying. Her husband is heart-broken. But his grief is augmented by the fact that her computer is locked and he cannot access the information on it -- and her book was nearly finished, she had told him.
I know it's a bit off-topic, but I hope that we who are caretakers take care of ourselves -- and also "take care" to ease the jobs of those who care for us in our last days.
Don't give up hope on accessing the computer file for the book. I used to be a computer programmer and there are many ways to bypass things. I'm not that tech savvy with the current computer knowledge but if you took it to a computer place or found a young geek that loves computers I bet they could access the file for you. Make sure they make a copy of it first just in case they corrupt it trying to access it. Good Luck. Lauralee
A person has to have legal capacity to sign legal documents. As an attorney, I would want a doctor to evaluate capacity (and sign a statement of his or her findings) before your spouse signed anything if there is even a question about her mental capacity. Cognizant is not necessarily competent. That said, the power of attorney should be notarized and have a non-related, over 18 witness as well (or two witnesses - not related). That would not necessarily require an attorney, but having an attorney draft the power of attorney is a good idea. If anyone challenged the power of attorney (if this was in doubt), you would need evidence of mental capacity (thus the need for a doctor's written evaluation).
As far as I understand here in Florida where I live as well, unless there is a "Certificate of Incapacity" signed by a doc, a person is considered to be able to make decisions.
You should get the POA done as soon as possible while she is still ok to sign. Taking her to a lawyer would be a good idea but maybe not necessary. However that said I made a mistake that I would not want anybody else to make. My mother's lawyer was the executor of her estate but didn't want to do anymore when he found out she was moving to Florida. So he gave me all the paperwork, and I signed something that said I received it. Deciding she needed an executor I found a form in a library book, copied it, and followed the instructed and had a notary sign it. Although I had everything right, I didn't have where my Mother and the witnesses sign in the right place on the form (middle of form, end of form). This is a Florida quark. The form was invalid and would have to be argued in court. Also when the bank officer saw it she was alarmed and would not give me the remaining money in my mother's account. It was under 10,000 and she had promised to give it to me with a signed paid funeral bill. Seeing the signed executor paper she assumed there was more to probate (there wasn't) than the bank account and refused to give me the money. The story to be learned here is to get a lawyer from the right state for these kinds of papers. I would have been better off not making that executor paper than not making it Florida ready. But who knew? I am now waiting the 3 years for it to go into Unclaimed Funds. A new problem has cropped up. My sister had a bad stroke and is in a nursing home on Medicaid (paralyzed). I handle her finances but am not her POA. She can't have anymore than 2000 income in her checking account. Her share of my mother's money would put her over. I would have to leave her share in Unclaimed Funds until after she dies plus Florida's waiting time. This is all my fault. But I promised everybody I would eventually make everything alright. Lucky for me, everybody is being patient and just happy somebody is handling it.
Ah, so sorry for the trouble you are going through!
Just wanted to say, that I, too, live in Florida, and the banks where my mother's money is BOTH require their own signed documentation for me to act as my mother's POA "for THEIR banks". The attorney-prepared and signed (by my mother with witnesses) DPOA is not accepted by either of the banks. And honestly, for anyone who it works for, my mom has listed me joint on her accounts, so that there is absolutely no trouble.
And other advice, for anyone who does not want their money/property to go into probate, thus requiring going to court, SEE an elder attorney and spend the money to have a trust drawn up. I am fairly certain I am far from alone in not wanting to have to go to court for probate.... my life is super busy, and that is the last thing I would want. Luckily my mother agrees with me and we will be seeing her attorney soon to do just that.
In NEW YORK two witnesses that are not knowing of either side a lawyer. and The POA could not be present WHILE PAPERS WERE Signed in case of coherse ...
When my wife and I signed POA's a few years ago we did it in an attorney's office, but the one who witnessed the signatures was a notary and unknown to us, who happened to be the attorney's secretary. The notary is the one who signs and seals the documents, so I would say you don't need an attorney for what you want to do; possibly there is a notary on the hospital staff that would oblige. Notaries might charge a small fee for their services, but an attorney's fee would be much more. If you are unknown to the notary she or he might ask for ID,s
Doctor saying that it is legal. You do not need an attorney.
Do you believe that she isn't cognizant enough to sign a POA?
If this is so you can help her then by all means have the hospital handle the notary and witnessing of her signature. I did that with my dad and it is completely legal.
In CT you need 2 witnesses and a notary but none of them has to be an attorney, though that is often the easiest place to find the collection of people you need. Hospitals usually have a notary available as well if you happen to be doing this through a hospital stay.
In my state hospitals do not allow any employee, even social workers, to act as witness.
This is for financial, or for health or for both? There is also a need to my mind for the POA to continue when the person is NOT any longer cognizant, so I wanted to be certain that language was in there, as my brother diagnosed with a possible early Lewy's dementia, and his condition will deteriorate over time. I felt much safer that we went through an attorney. It wasn't cheap but it's done correctly I think, our main concern.
That said, I'd also recommend searching Legal Zoom or other online sources that give you access to forms and general legal advice. They have charts that provide a lot of information by state. Generally, you must have a notary witness your signature; but a good elder lawyer is the one who advises you on so many other things and is a strong ally throughout the aging process.
Also, having the doctor "say" that someone is cognizant is great; even better is for the doctor to complete the state's form that is an advanced directive/living will declaration. In Indiana, when we were in the process of choosing an assisted living facility, they required us to have the Indiana form filled out by my mom's physician.
Finally, as you go through this process, it is wonderful to put together a file box with her insurance policies, medical information, copies of POAs, copies of her SS card, Medicare card, other health and life policy numbers and contacts, financial data, bank statements, funeral directives and the like. AND, if your mother is computer savvy, or has any passwords, get that information as well.
Finally, a story related to the password issue:
My husband's dear sister was a writer, working on a new book about Abraham Lincoln and one of her ancestors who was a close friend of Lincoln's. In her mid-70s, very healthy, we thought, and much beloved. On Mother's Day this year, she suddenly contracted encephalitis, went into a coma, and never really came back before dying. Her husband is heart-broken. But his grief is augmented by the fact that her computer is locked and he cannot access the information on it -- and her book was nearly finished, she had told him.
I know it's a bit off-topic, but I hope that we who are caretakers take care of ourselves -- and also "take care" to ease the jobs of those who care for us in our last days.
Just wanted to say, that I, too, live in Florida, and the banks where my mother's money is BOTH require their own signed documentation for me to act as my mother's POA "for THEIR banks". The attorney-prepared and signed (by my mother with witnesses) DPOA is not accepted by either of the banks. And honestly, for anyone who it works for, my mom has listed me joint on her accounts, so that there is absolutely no trouble.
And other advice, for anyone who does not want their money/property to go into probate, thus requiring going to court, SEE an elder attorney and spend the money to have a trust drawn up. I am fairly certain I am far from alone in not wanting to have to go to court for probate.... my life is super busy, and that is the last thing I would want. Luckily my mother agrees with me and we will be seeing her attorney soon to do just that.
Do you believe that she isn't cognizant enough to sign a POA?
If this is so you can help her then by all means have the hospital handle the notary and witnessing of her signature. I did that with my dad and it is completely legal.
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