The Law on Power of Attorney in California

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What is a Power of Attorney in California?

A power of attorney is a legal document that grants the holder (called the agent) legal authority to act on behalf of another person (called the principal). Importantly, a principal may grant power of attorney to an agent giving just a few powers, or a great deal of powers.

Power of attorney is important especially when a person becomes incapacitated or can no longer make financial or health decisions on their own. Consult an experienced California trusts, estate, & probate attorney who can answer any questions you have about a power of attorney.

What Are the Types of Power of Attorney Documents?

Generally, power of attorney documents are described by 1) the time they take effect, and 2) the powers they grant or limits thereon.

In California, a power of attorney can be made a springing power of attorney or an immediate power of attorney. An immediate power of attorney becomes effective when signed. A springing power of attorney only becomes effective when a certain condition is met, such as the principal becoming incapacitated; thus, the agent does not get immediate authority. Cal. Prob. Code §4129.

Typically, a power of attorney goes into effect when signed and ends once the principal becomes incapacitated.  However, a durable power of attorney continues even when the principal becomes incapacitated, is rendered unconscious, or otherwise incapable of communicating their desires. Cal. Prob. Code §4124.

A springing power of attorney is considered a durable power of attorney because it becomes effective and lasts through a principal’s incapacity.

Generally, there are three power grants for a power of attorney: 1. General, 2. Limited, and 3. Power of Attorney for Healthcare

A General Power of Attorney gives an agent broad powers in legal matters with health care decisions being an exception.

A Limited Power of Attorney (Specific Power of Attorney) allows an agent to act in a specifically defined scenario. A principal would prefer this type of Power of Attorney if they wish someone to only make a decision for them in certain situations such as one business transaction.

A Power of Attorney for Healthcare allows an agent to make healthcare decisions only if you are unable to make or communicate them yourself. Thus, it is considered both springing and durable.

What Are the Legal Requirements for a Valid Power of Attorney in California?

A basic requirement for any POA is that the principal must have the same legal capacity that is required to enter into a contract. Cal. Prob. Code §4120. Generally, that the person is of sound mind and at least 18 years of age.

A power of attorney dealing with financial matters must be signed by the principal either before a notary public, or before two witnesses. Cal. Prob. Code §4121.

If the power of attorney is signed by witnesses, the witnesses must be adults; the attorney-in-fact cannot serve as a witness; and each witness must witness either the signing of the document by the principal, or the principal’s acknowledgement of the signature on the document. Cal. Prob. Code §4121.

Can Power of Attorney be Revoked?

Power of attorney may be revoked. Revoking power of attorney terminates the ability of an agent to make decisions on behalf of the principal. Cal. Prob. Code §4153.

The principal may revoke a power of attorney on their own and need not obtain approval from their agent.

Can I Name More than One Power of Attorney?

Yes. You can name any number of agents to make any specific type of decision on your behalf. Importantly, if a principal grants inconsistent authority to one or more agents in two or more powers of attorney, the authority granted last controls to the extent of the inconsistency. Cal. Prob. Code §4130.

How Do I Get a Power of Attorney in California?

There are free California fillable forms available. However, it may be in your interest to contact a trusts, estates, and probate attorney to ensure your power of attorney grants all the powers you want, and none you don’t.

Federza Zekiri
Trusts, Estates, & Probate Law Clerk Ferdeza Zekiri

Attorney Scott Talkov
Talkov Law Attorney & President Scott Talkov

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About Ferdeza Zekiri

Ferdeza Zekiri is an attorney at Talkov Law in San Diego. The focus of her practice is real estate law and trusts, probate & estate law in California. She can be reached at (858) 800-3300 or ferdeza@talkovlaw.com

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