Power of Attorney
Requirements in California
Pursuant to California Probate Code section 4121, a power of attorney is legally sufficient if all of the following requirements are satisfied:
- The power of attorney contains the date of its execution.
- The power of attorney is signed either by the principal or in the principal's name by another adult in the principal's presence and at the principal's direction.
- The power of attorney is either acknowledged before a notary public or signed by at least two witnesses who are adults.
Types of Power of
Attorney in California
In California, there are five different powers of attorney that will allow you to appoint a person to act on your behalf for financial, tax, property, healthcare, and other legal matters, should you be unable to do so yourself.
Durable Power of Attorney
According to California Probate Code section 4124, a durable power of attorney is a power of attorney by which a principal designates another person as attorney-in-fact in writing, and the power of attorney contains any of the following statements:
- "This power of attorney shall not be affected by subsequent incapacity of the principal."
- "This power of attorney shall become effective upon the incapacity of the principal."
- Similar words showing the intent of the principle that the authority conferred shall be exercisable notwithstanding the principal's subsequent incapacity.
General Power of Attorney
A general power of attorney gives the attorney-in-fact the legal duty and power to act on the principal's behalf in various matters. The agent can handle business transactions, open financial accounts, manage your personal finances, settle claims, enter into contracts, and purchase and sell real estate property.
Limited Power of Attorney
A special or limited power of attorney allows the principal to specify certain matters that you want the agent to act on your behalf. For example, a special power of attorney allows the agent to collect debts, sell a property, or manage real estate when you're unavailable. The special power of attorney document expires once the specified task has been executed.
Health Care Power of Attorney
A health care power of attorney (or advanced care directives) grants the agent the power to make healthcare decisions for the principal if he or she becomes mentally incompetent, unconscious, or otherwise unable to make decisions. Your agent can help make major medical decisions, including decisions related to surgical procedures, medical treatment, healthcare facilities, organ donation, and other essential medical decisions.
Springing Durable Power of Attorney
A springing durable power of attorney is activated and grants the agent the legal authority to act on the principal's behalf when certain events occur. Under California Probate Code section 4129 (b), a springing power of attorney containing the designation becomes effective when the person or persons designated in the power of attorney execute a written declaration under penalty of perjury that the specified event or contingency has occurred.
Things to Consider When
Choosing a Power of Attorney
When choosing a power of attorney, here are some important factors that you should consider:
- Trust – You should choose someone who is reliable, who will respect your wishes, and who has your best interests at heart and won't abuse the privilege granted unto them.
- Proximity – You may want to choose someone who is close to where you reside so they can be easily reached if the need for their presence arises.
- Recordkeeping Skills – You may want to choose an agent who can keep accurate and well-detailed records of all transactions carried out on your behalf.
- Decision Making – You should choose an agent who can make informed decisions under possibly strenuous situations. The person must also be willing to take on this responsibility.
Get The Guidance You Need Today
Choosing a power of attorney is a huge decision that involves a number of thorough considerations. At The Orantes Law Firm, we advise all of our clients to select someone who they believe they can trust. This person should have their best interests and respect their wishes when making decisions on their behalf. An experienced California estate planning attorney will guide you through every step of the legal process and ensure that you select the ideal agent.
In addition, we have the resources and experience to help you create a strategic estate plan, including assistance with creating trusts, wills, and advanced healthcare directives. As your legal counsel, we will work meticulously to address your concerns and establish a plan that best fits your unique needs. A one-on-one consultation with an experienced attorney can provide you with the detailed guidance you need.