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 for Healthcare
In California, a Durable Power of Attorney for Healthcare is called an “Advance health care directive” or “advance directive.” The Durable Power of Attorney for Healthcare will allow your agent to make decisions regarding your health care and treatment for you in the event you become incapacitated. It is called durable because it remains effective even while you are 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.
What kinds of decisions can your agent make regarding your health care? These decisions involve your health care and can include your agent’s consent or refusal to consent to care, treatment, or surgical procedure for your physical or mental condition. Of course, when you can, you should specify your wishes and desires in the Durable Power of Attorney to guide your agent. For instance, you can provide whether or not you wish to be sustained by life support systems. You may state if you wish to donate your organs to scientific research upon your death.
Where can I get a Durable Power of Attorney for Health Care? Most hospitals or your doctor will have a Durable Power of Attorney For Health Care on hand for you to complete and sign. They will require that you have a Durable Power of Attorney for Health Care on file before a major procedure, such as an operation. For official California form, visit Probate Code Section 4701.
Durable Power of Attorney for Personal Affairs and Property Management
The Durable Power of Attorney for Personal Affairs and Property Management 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. 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.
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.
Can I revoke the Durable Power of Attorney for Healthcare or a Durable Power of Attorney for Personal Affairs and Property Management?
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 for Health Care or Personal Affairs be notarized?
Yes, California law requires that the Durable Power of Attorney must be notarized or signed by at least two witnesses. 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.
Other requirements for Powers of Attorney?
Yes, the Power of Attorney must contain the date it was signed in California.
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.
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 affect on your life going forward. You may schedule a telephone consultation with our office to discuss your needs.
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