Durable Power of Attorney California

An estate plan lets you arrange for the orderly handling and distribution of your real and personal property when you die. 

It makes known your preferences and gives peace of mind in knowing documents, including wills and trusts, that you sign will ensure that your wishes will be honored.

Adding a durable power of attorney to your estate plan lets you know that someone you trust to follow your wishes will be there to handle your financial affairs should you be unable to handle them on your own. 

Anything that prevents you from handling your own affairs, from an incapacitating illness or injury to simply being away on vacation, can be taken care of by a trusted person granted authority to act for you through a durable power of attorney.

California authorizes the use of several types of powers of attorney. The information presented in this article can help you determine whether a durable power of attorney is the right choice for your particular situation and needs.

What is a durable power of attorney?

Powers of attorney allow a person, who the law refers to as the “principal,” to appoint an agent to act with the same legal authority as the principal to make decisions and sign documents pertaining to financial and business affairs. 

The most common types of financial powers of attorney in California are the general power of attorney and limited power of attorney.

An agent’s authority granted with the signing of a power of attorney  ends under both general and limited powers of attorney upon the subsequent incapacity of the principal. 

A durable power of attorney prevents the loss of an agent’s authority to act at a time when principals incapable of making their own decisions need someone to step in and make them.

Any type of power of attorney becomes a durable power of attorney when it contains language stating that the terms of this power of attorney shall survive the subsequent incapacity of the principal or similar words conveying the same meaning. 

The fact that it survives a principal’s incapacitating injury or illness makes a durable power of attorney an important legal document to have as part of an estate plan as a benefit for both you and your family.

A  power of attorney for health care is another form of durable power of attorney in California. 

It grants authority to an agent to make healthcare decisions and end-of-life decisions for a principal who cannot make them for themselves. 

The California power of attorney for health care is considered to be durable because it contains statutory language making it effective only when the principal is incapacitated. 

How does a durable power of attorney work?

A durable power of attorney provides you with flexibility and an option for handling situations when you need someone to stand in for you with the legal authority to handle your affairs. 

An agent may be granted authority to handle most financial, personal and business matters, including:

• Management of your property.
• Signing legal documents, including for the sale or purchase of real property.
• Signing and filing tax returns.
• Operating a business.
• Writing checks and handling other banking transactions.

Other than going to court on behalf of a principal, which requires the assistance of an attorney, an agent under a durable power of attorney can handle most matters with the same legal effect as if they were done by the principal.

What are the roles and responsibilities of a durable power of attorney?

The law imposes on an agent the legal duty to only use the authority granted by a durable power of attorney to serve the best interest of the principal. Agents hold a position of trust that include fiduciary duties owed to the principal that include:

• Avoiding conflicts of interest.
• Keeping a principal’s property separate from the agent’s.
• Acting on behalf of the principal only to the extent of the specific authorization contained in the power of attorney.
• Maintaining true and accurate records of all financial transactions completed on behalf of the principal.
• Keeping the principal informed of all activities performed by the agent.

A principal’s signing of the power of attorney allows an agent to act according to the authority granted by it in reliance on its validity. The principal has an obligation to notify an agent in the event the power of attorney is revoked.

Do I need a lawyer to get a durable power of attorney?

Nothing contained in any California Probate Code section requires the use of an attorney for the preparation of a durable power of attorney. 

An important consideration to keep in mind is that a durable power of attorney is a legal document granting significant authority to another person to act for you even when you are mentally incapacitated and unable to act. 

The advice and guidance of an experienced attorney ensures that the power of attorney satisfies all formalities the law requires. This includes the language needed to make it a durable power of attorney and the procedures for signing it.

How Do I get a durable power of attorney?

An attorney admitted to practice law in California can prepare a durable power of attorney for you and ensure that it is properly signed to be valid under state law. There is a statutory form power of attorney available online that includes language making it a durable power of attorney. 

Does a durable power of attorney need to be notarized in California?

A durable power of attorney with two people witnessing the signing of the power of attorney by the principal is valid without being notarized. 

The witnesses must be adults and sign the document attesting to seeing the principal sign it or that the principal acknowledged signing.

Instead of witnesses, a principal may sign a durable power of attorney and bring it to a notary public. The notary will sign an acknowledgment printed on the power of attorney in which the notary certifies under penalty of perjury that the principal acknowledged signing it.

How long does a durable power of attorney last in California?

A durable power of attorney lasts for the entire lifetime of the principal unless there is a shorter period of time for its termination written into its terms. It may be terminated sooner by the principal revoking the authority granted under it. 

If you revoke a power of attorney or it terminates due to a time period in the document, you should speak with an attorney about preparing a new durable power of attorney to replace it. This avoids not having anyone authorized to act for you.

Where do I get a durable power of attorney form?

Durable power of attorney forms may be found on the websites of county library services throughout California. 

Conclusion

Now that you have the important facts about durable powers of attorney and understand they involve granting significant legal authority to an agent, take time to give careful consideration to the person you choose to be your agent. Make certain that you choose a qualified person who is capable of handling the significant legal responsibilities of an agent.