There are different things you need to keep in mind when choosing a witness. Specifically, regarding who can be a good candidate for witnessing documents.
Witnesses of a legal document need to also be of legal age. In most cases that means that they must be at least 18 years old. However, in some countries or states the legal age may vary. Make sure that you check your local or national legislation before you nominate someone as your witness.
In case you are not choosing a witness for a legal document, you should still consider any age limitations. For instance, if the witness of your Advanced Care Plan is your 13-year-old niece, your other relatives may have difficulty taking it seriously.
Conflict of interest
Additionally, most states or countries have certain regulations in place to avoid any conflict of interest. For instance, beneficiaries of a Last Will cannot be witnesses of the same Will. The reason for this is to prevent a witness from having ulterior motives for signing the Will. As a result, you have to make sure that the witnesses of your Will do not have an interest as beneficiaries of your Will too.
It is extremely important to get this right because if a witness is considered to have interest under a Will their signature may be nullified by a judge or a probate court. For example, the majority of countries or states will probably consider a spouse as a bad choice for a witness. You should also avoid choosing someone as your witness if their spouse (or civil partner) is a beneficiary under your Will.
Keep in mind that a lawyer that takes part in crafting a Will, can still sign as a witness. You may also know that you can name Executors and Trustees in your Will that will actually be reimbursed for their services. Such a person (also called a fiduciary) can still sign as a witness of your Last Will, because even though they will receive payment for their services, it doesn’t count as having conflict of interest by receiving financial benefits from property included in the Will.
Witnesses with a conflict of interest are not great for non-legal documents either. However, your options are quite broader for a non-legally binding document.
For instance, your Advance Care Plan witness could be a relative, a medical professional or a close friend. It’s advisable that your witness is not the same person as the designated decision-maker, however.
Certain states or countries may also require that the witnesses can see adequately. The purpose of this is to make sure that the witnesses know what they are signing. That is especially true for a legally binding Will, since all of the witnesses as well as the Testator need to sign it.
Although many states and countries have started tackling that issue, witnessing for people with sight impairment can still be complicated. You should make sure that whoever you choose as your witness, can easily fulfill their duties. Legal documents are not, it is important that courts or relatives cannot question the credibility of your witness’ signature.