If you are starting your estate plan in California, you must understand the California power of attorney requirements. Read on to learn more.
Learn more about Power of Attorney
by Rebecca Lake
Rebecca writes about saving, investing, retirement, budgeting, credit, banking, debt, student loans, home-buying, tax.
Updated on: July 28, 2024 · 7 min read
A power of attorney (POA) is a legal document that gives someone you name the authority to handle medical, legal, or financial matters for you under specific circumstances. The person who creates a POA is called the principal, and the person who's authorized to act for you is called your attorney-in-fact or agent. Powers of attorney rules vary nationwide because individual states set their own rules governing POA arrangements. California power of attorney requirements—and the powers assigned to agents—are defined in the state's code.
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Power of attorney gives someone of your choosing the authority to act on your behalf. Having power of attorney can be helpful if you find yourself in a situation where you're unable to make decisions on your behalf or would prefer to have someone else act for you. If you are suddenly incapacitated in a car accident, for instance, then your attorney-in-fact can step in to handle your affairs.
Depending on how you've worded your power of attorney document, an agent's authority may allow them to do any of the following on your behalf:
You may choose one person to act as your agent in all of these situations or have more than one agent if state law allows it. California power of attorney rules allow you to name multiple agents or attorneys-in-fact, which you may prefer if you'd like to have different people oversee financial decisions, medical decisions, or business affairs for you.
California power of attorney laws offer protection in a variety of situations. Generally speaking, if you own a home or business, then it may be a good idea to have this type of legal document in place.
In terms of specific scenarios where a California power of attorney can be useful, here are a few examples.
In any of these situations, power of attorney lets you (or whoever the principal is) maintain a measure of control even when it's not possible to act directly.
There's more than one option for establishing power of attorney in California. The one you choose can depend on your needs and situation. Here's a closer look at the different possibilities for California power of attorney.
A general power of attorney in California is the most comprehensive option since your agent's authority can extend to both financial and business affairs. General power of attorney is also flexible, as you can rescind it at any time or name a new attorney-in-fact.
When a general power of attorney document can grant broad powers to an agent, a limited power of attorney only authorizes them to act in specific situations. For example, if you and your spouse are buying a home together and your spouse is deployed in another country and can't make it to the closing, you might be granted limited power of attorney to sign the contract in their place. Once the signing is done, your authority as an agent ends.
A medical POA gives your agent the authority to make health care decisions for you. This document, also called an advance health care directive, limits your agent to making health decisions only when you're incapacitated unless you specify otherwise. You might set up a medical POA if you're worried about being involved in an accident, you have to undergo surgery, or if you're diagnosed with a terminal illness.
In addition to defining different types of power of attorney, California law allows principals to decide when a POA takes effect. Power of attorney authorization can be durable, non-durable, or springing.
Here's a simple durable power of attorney definition. It means that the POA takes effect as soon as the principal signs it. You might consider setting up a durable POA to allow your agent to manage healthcare decisions, financial affairs, or business matters if you're worried about not being able to do so yourself.
A non-durable POA, on the other hand, only conveys limited power to the person acting as your agent. Once you become incapacitated, an agent's authority to make financial decisions or business decisions for you ends. That could leave your loved ones in the position of having to obtain a guardianship or conservatorship if you're unable to make your own decisions.
Springing durable power of attorney, on the other hand, grants your agent authority to act only when you become incapacitated. Understanding the different ways to structure power of attorney can help you decide whether it makes sense to choose a durable, non-durable, or springing POA option.
California power of attorney requirements are fairly straightforward. Here are all the boxes you'll need to check off to create a valid California power of attorney.
There's an additional requirement if you're setting up a power of attorney for real estate transactions. In that case, you'll also have to get your POA notarized, and the agent cannot be a witness.
A medical POA that's signed in a nursing home must be witnessed by a patient advocate or ombudsman. That's in addition to the two competent witnesses and the notary public that are also required.
Real estate transactions can be some of the most complicated financial affairs to manage since there are often many legal hurdles to jump through. In California, your power of attorney can act for you to do the following:
Having power of attorney for real estate transactions can be helpful in situations where you can't be present to sign documents or authorize payments. As mentioned, it may also be helpful for older people to have someone to act as a financial POA on their behalf to protect their property or other assets against elder abuse.
Under California POA rules, an attorney-in-fact and an agent are essentially the same things. They're two different terms used to describe a power of attorney. When naming an attorney-in-fact or agent, it's important to choose someone that you can rely on to carry out your wishes and act in your best interests.
For example, if you want to set up an advance health care directive that includes a do-not-resuscitate order, you may want to make that clear to the person you plan to name as your medical POA beforehand. Specifically, they need to understand that they cannot override your wishes if they disagree with them.
Likewise, if someone else chooses to name you as their agent under California power of attorney rules, you need to know what you are and are not authorized to do. Before you agree to become someone's power of attorney, it's a good idea to have a discussion with them about what they expect and when you might be called on to act for them.
In California, you must use a specific power of attorney form as dictated by the state code. You can find financial POAs in California Probate Code Section 4401, called a Uniform Statutory Form Power of Attorney. This is used to create general or limited POAs. The California healthcare POA is found in Section 4701 of the Probate Code and is called an advanced healthcare directive.
You can also work with an attorney or an online service to create and execute your POA. If you're unsure about which form to use, getting legal help is a good idea.
Learn more about Power of AttorneyThis article is for informational purposes. This content is not legal advice, it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.
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