Can I Use a Notary Instead of Witnesses on Power of Attorney for Health Care?

Attorney Thomas B. Burton answers the following question: Can I Use a Notary Instead of Witnesses on Power of Attorney for Health Care?

In the latest Q&A Series video, Attorney Burton answers the question about the usage of Notary Public instead of witnesses on a Power of Attorney for Health Care in Wisconsin. Attorney Burton also discusses all the conditions as per the Wisconsin state statues and provides a clear idea of what one can do and cannot do, when creating a Power of Attorney for Health Care.

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Welcome back, I'm Attorney Thomas Burton. I'm an estate planning and asset protection attorney here in Wisconsin and today we return to my popular Question and Answer Series where I answer Real Reader Questions, pro bono as a service to the public.

So today's question comes from Milwaukee, Wisconsin and they asked the following -

"Can I make changes on a Power of Attorney for Health Care? I live in Wisconsin. In Wisconsin, when making out a power of attorney for health care that only requires two witnesses’ signatures, can it be notarized in lieu of the witnesses?"

So for a power of attorney for health care, you must have two witnesses, you cannot substitute a notary and the reason for this is set out in the Wisconsin statutes in Wisconsin Statute 151.10 - A power of attorney for healthcare execution requirements witnesses.

This section of the statute says, a valid power of attorney for healthcare instruments shall be all of the following -

A. in writing,

B. dated and signed by the principal, that's you the person making the power of attorney or by an individual who's attained age 18 at the express direction and in the presence of the principal. So if you are physically unable to sign, you can direct someone to sign it for you, in your presence and

C. signed in the presence of two witnesses who meet the requirements of Sub 2 and

D. voluntarily executes. So you can't execute it under duress, it has to be voluntarily.

So then Sub 2 says, a witness of the execution of a valid power of attorney for health care instrument shall be an individual who has attained age 18, no witness to the execution of the power of attorney for health care instrument may at the time of execution be any of the following -

A. related to the principle by blood marriage or adoption or the domestic partner under Chapter 770 of the individual. So it can't be a relative, related by blood, marriage or adoption or your domestic partner.

B. have knowledge that he or she is entitled to a claim on any portion of the principles of estate. So the witness also can't be someone you named in your estate planning documents and they have knowledge of that.

C. directly financially responsible for the principal's health care.

D. an individual who is a health care provider, who is serving the principal at the time of execution. An employee other than a chaplain or social worker of the health care provider or an employee other than a chaplain or a social worker of an inpatient healthcare facility in which the principal is a patient. So generally anyone treating you at a health care facility cannot serve as a witness other than the chaplain or a social worker.

So this is a big reason I suggest to people, you should not wait until you're in need of serious medical care to execute a power of attorney for health care because the statutes explicitly say, people like the doctor and the nurses cannot service witnesses. So if you're on your deathbed in the hospital and you haven't signed a power of attorney for health care, a lot of those people are immediately disqualified for witnesses. Now some facilities have the chaplain and the social worker who will serve as witnesses but again, if it's a time sensitive situation, you have to be leaving it up to hoping that they're available when you need them.

The other thing I caution against waiting till you're in the care facility is there can be questions about your mental capacity and things like that depending on your health condition and the drugs you're on. So in my opinion it's much safer and better to execute a power of attorney for health care on the outside, when you're not in a health care facility either in front of two disinterested witnesses like your friends or neighbors or doing it with your attorney, at the attorney's office where none of those people are your health care providers and E. The final person who cannot be a witness for the healthcare power of attorney is the principal's healthcare agent. So you can't name your friend 'Sally' as the agent and then have Sally be the witness. So the healthcare agent is very specific on who can and cannot be a witness and you cannot substitute a notary public on this document. Now I see a lot of confusion over this because on a power of attorney for finances which deals only with your financial affairs and property, that document can be executed in front of Notary Public. In fact, only your signature is required to make it valid but it's different for the healthcare power of attorney, you can't substitute the notary on this document.

So good question, you can change or amend this document, just make sure you get it signed and witnessed properly, if you're looking to make updates or changes to your previously executed healthcare document because the key to making it legal is that it's signed and witnessed in compliance with the statutes and then, you can make those updates.

Now sometimes, people ask me how to update a power of attorney for healthcare? Generally, I would just recommend executing a new one that revokes the previous document and is in current compliance with the laws as they exist today because they just updated the statutes earlier this year on the power of attorney. Early in 2020, I should say, for the power of attorney for health care and so, if you have a document prior to that date and you want to make changes anyway, you might as well just execute the completely new version which is compliant with the state statutes as of today because that's what the healthcare facilities are going to go off of and be most familiar with.

So good question again, you cannot substitute a notary, you need those two disinterested witnesses and reference 1, chapter 155.10 of the Wisconsin statutes, if you want that exact list again, of who can and cannot serve as a witness.

So thanks for asking the question and thank you to the rest of you for watching. If this video has been helpful to you, please consider giving it a Like, so that the YouTube algorithm will see that and show it to other people, who could benefit from this information as well.

Thanks for watching and we'll see you next time.

© 2021 Burton Law LLC. All Rights Reserved. Transcript and captions provided for ease of access for the hearing impaired. For questions about this topic, or to suggest a topic for a future blog post, please contact the office.