Power of Attorney Legal Requirements California

Power of Attorney Legal Requirements California

What is a Power of Attorney?

A Power of Attorney is a document whereby you appoint some to act on your behalf. You are known as the principal. The person who acts on your behalf is known as an attorney-in-fact or agent. The act for which you have a Power of Attorney may be very specific, such as Power of Attorney to sign your name to a check or other important document. It is useful for a specific purpose such as this, but there are other uses. In the case that you are unable to handle your own affairs, you may appoint someone to handle all of your affairs. You may appoint someone to make decisions regarding your health care when you are unable to make those decisions.

When a Power of Attorney is no longer required, it may be revoked by you in a document called a Revocation of a Power of Attorney. This discussion is focused on the requirements of California law. An attorney-in-fact acts or agent acts as a fiduciary and has fiduciary obligations when acting on behalf of the principal. This means that your agent has certain obligations under law. Under California law, these legal obligations include the legal duty to act solely in the interest of the principal and to avoid conflicts of interest. Also, your attorney-in-fact has the legal duty to keep the principal’s property separate and distinct from any other property owned or controlled by you.

Are there different types of Powers of Attorney?

There are four types of Powers of Attorney:

Special or Limited Power of Attorney

A Special or Limited Power of Attorney will enable your attorney-in-fact to carry out specific acts that you require, such as to sign documents in your absence. A General Power of Attorney is more comprehensive than a Special Power of Attorney and provides that the agent can conduct all business regarding the financial affairs of the Principal. Both the Special and General Powers of Attorney end upon the date that you set in the Power of Attorney, revocation or incapacity of the principal.

Durable Power of Attorney

A Durable Power of Attorney allows your agent to make decisions for you regarding your personal affairs and property management. It is called durable because the power of attorney survives your subsequent incapacity, and you can no longer conduct your own personal affairs. To create a durable power of attorney, the language in the document must specifically state that the agent’s authority will continue if the principal becomes incapacitated.

Therefore, it is effective on the date a principal signs it and throughout his or her lifetime, even if the principal becomes incapacitated. Under California law, the Durable Power of Attorney for Personal Affairs and Property Management must recite that the power of attorney shall not be affected by subsequent incapacity of the principal, or similar words. This shows the intent of the principal that the authority conferred can be exercised notwithstanding your subsequent incapacity. 

What personal matters does the durable power of attorney for personal affairs encompass? To give examples, your attorney-in-fact may settle litigation that you are in, pay your bills, or sell real estate, to name a few matters. Your attorney-in-fact may withdraw funds from your bank account directly or deposit funds. Each type of personal matter will be spelled out in some detail in the durable power of attorney.

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Can I revoke the Durable Power of Attorney?

Yes, you may revoke Durable Powers of Attorney.

How do I revoke the Durable Power of Attorney for Healthcare or a Durable Power of Attorney for Personal Affairs and Property Management? You must sign a revocation document and have it notarized.

Must Durable Power of Attorney be notarized?

When signing a Power of Attorney in California, it is essential to ensure that the document is legally valid. California law requires that the Power of Attorney must be either notarized or signed in the presence of two witnesses. The Notary Public will verify the identity of the principal and witness the signing of the document, thus making it legally valid. In California, a principal cannot act as one of the witnesses.

If an individual is a patient in a skilled nursing facility, the Durable Power of Attorney for Health Care is not effective unless a patient advocate or ombudsman signs it as a witness, either as one of two witnesses or in addition to notarization.

Overall, whether notarized or witnessed by two individuals, the POA must be legally valid for it to be enforceable in California.

Power of Attorney for Healthcare

California provides its own power of attorney for healthcare, called an Advance Health Care Directive, which allows designation of an agent to make health care decisions for an individual. Your agent will then make decisions regarding your health care and treatment for you in the event you subsequently become incapacitated. Incapacity means that you cannot make such decisions for yourself for many reasons. You may have Alzheimer’s disease,dementia or may be in a coma.

Additionally, the California Advance Health Care Directive allows a person to detail instructions for your health care agent and physician(s). For instance, you may provide for “End-Of-Life” decisions and donation of organs for scientific research. Furthermore, you may limit the authority of your agent with regard to health care decisions, and can specify your wishes and desires to guide your agent. You may specify that a physician will be your primary care physician.

Under California law, you must be at least eighteen years old, of sound mind, and not under any duress, fraud, or undue influence in order to sign the Advance Health Care Directive. The Health Care Directive must also be signed by two qualified witnesses or acknowledged before a notary public.  if you are a patient in a skilled nursing facility, the patient advocate or ombudsman must sign a specified statement under law. You have the right to revoke the Health Care Directive or replace it at any time.

A copy of the signed and completed Advance Health Care Directive should be given to your physician(s), to any hospital, and to any health care agents you have designated. Also, you should speak to the person you have named as agent to make sure that your agent understands your wishes and is willing to accept the responsibility. An alternative agent may be specified.

Where can I get a form of the California Advance Health Care Directive? For the official California form, visit Probate Code Section 4701.

Other requirements for Powers of Attorney?

Yes, the Power of Attorney must contain the date it was signed in California.

Springing Power of Attorney

A “Springing” Power of Attorney is a power of attorney which becomes effective or “springs” up only when the principal becomes incapacitated. This is created by words such as “This power of attorney shall become effective upon the incapacity of the principal.”

Under California law, the principal may designate one or more persons who, by a written declaration under penalty of perjury, have the power to determine conclusively that the specified event or contingency has occurred. The principal may designate the attorney-in-fact or another person to perform this function, either alone or jointly with other persons.

A Springing power of attorney becomes effective when the person or persons designated in the power of attorney sign a written declaration under penalty of perjury that the specified event or contingency has occurred.

Do you need an attorney to prepare a Power of Attorney?

No, you do not need an attorney, although one would be a good idea to adequately detail the powers that you are granting to your agent. Under California law, if you use a pre-printed form of Durable Power of Attorney without the assistance of a lawyer, then specified notices must be attached warning the principal and agent of their legal obligations. The warning can be found at California Probate Code Section 4128.

Can a Power of Attorney affect your Last Will and Testament?

No, a Power of Attorney is only effective until the death of its Principal creator. After that, testamentary documents, such as your Last Will and Testament, take precedence. For a discussion of the legal requirements for your Last Will and Testament visit our Make a Will page. Our Legal Services Plans may help you with a Power of Attorney.

In conclusion, the requirements for Powers of Attorney in California are substantial. You should contact your legal representative before you proceed down this path as it will have a powerful effect on your life going forward.

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About Author

Keith F. Carr is an attorney practicing Divorce, Estate Planning, and Bankruptcy. Attorney Keith F. Carr has over 30 years experience. Founder of Law Offices of Keith F. Carr, located in San Francisco, San Jose, and Palo Alto, Ca.

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