witness qualifications

[falafelkid]

Jurisdiction

Maine

In 2022, my mum's Maine Power of attorney for health care was witnessed by the primary agent and her attorney.

Now someone is claiming that the primary agent can not be a witness, and so the secondary agent is actually the agent. (it is the secondary agent making the claim).

My understanding is that the Maine Uniform Health Care Decisions Act, Title 18-C, M.R.S.A. §5-803(2) is the controlling code, where the stipulation is "The power must be in writing and signed by the principal and 2 witnesses."

The confusing part is that the form (dated 2008) states "Your agent cannot sign as a witness." The 2023 version of the form does not carry the same statement.

Questions:

1. Does the statement on the form override the code?
2. Is that the correct code to cite?
3. Is the primary agent disqualified because they were a witness to the document?

Thanks!

 

[Tax Counsel]

Questions:

1. Does the statement on the form override the code?
2. Is that the correct code to cite?
3. Is the primary agent disqualified because they were a witness to the document?

Thanks!

A form, even one prepared by a state agency, cannot change or override the state statute. The section you mentioned currently reads as follows:

2. Power of attorney for health care. An adult or emancipated minor with capacity may execute a power of attorney for health care, which may authorize the agent to make any health care decision the principal could have made while having capacity. The power must be in writing and signed by the principal and 2 witnesses. Notwithstanding any law validating electronic or digital signatures, signatures of the principal and witnesses must be made in person and not by electronic means. The power remains in effect notwithstanding the principal's later incapacity and may include individual instructions. Unless related to the principal by blood, marriage or adoption, an agent may not be an owner, operator or employee of a residential long-term health care institution at which the principal is receiving care. ​

Obviously the principal cannot be a witness to her own power of attorney (POA). It does not place any other restrictions on who may be a witness. However, there may be some other part of the state code that specifies the requirements for witnesses or there may be state court decisions that have set out requirements. So while this section would be one that would be cited in a dispute over whether the person nominated as agent may also be a witness to the signing of the POA, you'd need to also look for other parts of Maine law, including court decisions, to find out what restrictions, if any, exist.

It may be worth paying a probate or elder law attorney for a brief consultation on the matter to be sure you get it right. If the POA has already been signed and the principal is still competent, if it were my client we'd do a new one signed by two witnesses who are not mentioned in the POA if there is any doubt about the matter. That way, there isn't argument to be made over the matter. But I don't practice in Maine and the attorney you consult may have better ways to deal with it. If the principal is already no longer competent and there is a potential problem with the signatures, the attorney is the best person for advice on how to handle it.

 

[mightymoose]

It would be the burden of this second agent to prove the POA invalid in court, and in doing so would have to produce the evidence relied upon to make the claim. Until then, business as usual.