Power of Attorney

A power of attorney (POA) in California is a legal document that grants someone (the “agent” or “attorney-in-fact”) the authority to make decisions and act on behalf of another person (the “principal”) with regard to financial, legal, or other specified matters. The specific powers and limitations granted in a California power of attorney can vary based on the document’s language and the principal’s wishes. Power of attorney is used in all forms of estate planning and also in areas of elder law.  A Folsom lawyer who specializes in estate planning will always include a power of attorney within their estate planning documentation.  Here are some key points to understand about powers of attorney in California :

1. Types of Powers of Attorney:
   • General Power of Attorney: Grants broad authority to the agent to make financial and legal decisions on behalf of the principal. It can be effective immediately or upon a specified date or event. However, it becomes void if the principal becomes incapacitated.
   • Durable Power of Attorney: This type remains in effect even if the principal becomes incapacitated. A durable power of attorney can be effective immediately or spring into effect upon the principal’s incapacity. It is often used for incapacity planning.
   • Limited or Special Power of Attorney: Grants the agent specific and limited powers for particular transactions or situations. It is often used for specific financial or legal matters, such as selling property or handling a single financial transaction.
   • Medical Power of Attorney (Advance Directive): This document allows the principal to appoint an agent to make healthcare decisions on their behalf if they are unable to do so. California’s version of this document is typically referred to as an Advance Directive for Health Care.
2. Requirements and Execution:
   • To create a valid power of attorney in California, the document must be in writing and signed by the principal.
   • In California, the law requires the POA to be notarized or signed by two witnesses, neither of whom is an agent for the principal.
   • California also provides a pre-printed statutory form that could be used as a power of attorney. Many attorneys choose to use their own POA for custom drafting.
3. Agent’s Responsibilities:
   • The agent must act in the best interests of the principal.
   • Agents have a fiduciary duty to act honestly, prudently, and in accordance with the principal’s wishes, as specified in the document.
   • The agent should keep accurate records of all financial transactions conducted on behalf of the principal.
4. Revocation and Termination:
   • A principal can revoke or terminate a power of attorney at any time, as long as they have the capacity to do so.
   • The revocation should be in writing and provided to the agent.
   • The principal’s death or incapacity also terminates the power of attorney.
5. Advance Directive for Health Care:
   • In California, the Advance Directive for Health Care allows individuals to appoint a healthcare representative and provide specific instructions regarding their healthcare decisions in the event of incapacity.
   • This document can also include a Physician Orders for Life-Sustaining Treatment (POLST) form, which addresses end-of-life care.
6. Conservatorship: A power of attorney may be used to avoid the need for conservatorship proceedings if a person becomes incapacitated. However, if the principal did not create a power of attorney before becoming incapacitated, a court may need to appoint a conservator to manage their affairs.

Summary

It’s essential to carefully consider the choice of agent and the specific powers granted in a power of attorney document. Consulting with an attorney experienced in California estate planning can help you create a power of attorney that aligns with your wishes and protects your interests. Additionally, keep in mind that certain decisions, such as medical decisions, may require a separate advance directive or healthcare power of attorney in California. If you have any questions about a power of attorney, or are seeking an estate planning lawyer in Folsom to assist you, please contact us.