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How To Get A Power of Attorney in California, and Which One

Updated: Apr 22

The Different Types Of POAs And What They're For


Power of Attorney is a formal, legal document that allows one person (the "principal") to delegate decision-making authority to another person (the "attorney-in-fact" or "agent"). The agent's decisions under a power of attorney are just as legally binding as if the principal took them.


You'll need to build a durable power of attorney if you want someone to make decisions for you when you're incapacitated. Seek an Estate Planning Attorney for help with this process.


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In California, you can generally delegate the authority to make financial and property decisions in the same document. Still, you must use a separate form called a power of attorney for health care to delegate the authority to make healthcare decisions. You may also make a power of attorney to appoint someone to look after your child if you can't.


When the principal dies or revokes the document, the document is automatically invalidated. When the creator of the POA becomes incapacitated, traditional POAs expire, but a "durable POA" stays in place to enable the agent to handle the creator's affairs, and a "springing POA" comes into effect only if and when the creator of the POA becomes incapacitated. An agent may also make medical decisions on behalf of an incapacitated person with a medical or healthcare POA.


The fundamentals:

  • A special power of attorney enables a person (the principal) to appoint another person (the agent) to act on their behalf in legal matters.

  • Only unique specified situations allow the agent to act on behalf of the principal.

  • A general power of attorney is more expansive, allowing the Estate Lawyer to make legal and financial decisions on the principal's behalf.


What is a Power of Attorney?


When preparing for long-term care, you should consider a power of attorney. A general power of attorney or a restricted power of attorney is two separate forms of POAs:

  • General Power of Attorney. As established by the state, a general power of attorney acts on behalf of the principal in any matter. A general POA agreement can give the agent authority to handle things like bank accounts, checks, property sales, and assets like stocks, filing taxes, and so on.

  • Restricted Power of Attorney. A restricted power of attorney allows the agent to work on the principal's behalf in particular situations. The restricted POA can, for example, state that the agent is only permitted to handle the principal's retirement accounts. A small POA may also be restricted to a particular time frame.

As long as the principal's mental state is fine, most powers of attorney documents authorize an agent to represent the named principal in all property and financial proceedings. If the principal becomes unable to make choices about himself or herself, the POA arrangement may immediately terminate. However, if the POA is to stay in place after the person's health deteriorates, a durable power of attorney must be signed (DPOA). Consider one of our prescreened California Lawyers in your California Attorney Search.


Understanding the Power of Attorney for the Long Term (DPOA)


Even if the principal becomes mentally incapacitated, the permanent power of attorney (DPOA) retains control over certain legal, land, or financial matters specified in the agreement. While a durable power of attorney (DPOA) can pay medical bills on behalf of the principal, the durable agent cannot make healthcare decisions for the principal.

If the principal requires an agent to make healthcare decisions, he should sign a healthcare power of attorney (HCPA). The principal's permission to grant the agent POA rights in the event of an unfortunate medical condition is outlined in this text, also known as a healthcare proxy. On behalf of the principal, the durable POA for healthcare is legally obligated to oversee medical care decisions.

A financial power of attorney is another form of DPOA. In the case that the principal becomes unable to comprehend or make decisions, this agreement requires an administrator to handle the principal's business and financial affairs (these include signing checks, fulfilling tax returns, sending and depositing Social Security checks, and handling investment accounts). To the degree that the agreement specifies the agent's responsibilities, the agent must do his utmost to carry out the principal's wishes.


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Both organizations will ask to see the DPOA when the agent works on behalf of the principal by making investment decisions through a broker or medical decisions by a healthcare professional. While a single DPOA can cover both medical and financial matters, it is preferable to have different DPOAs for healthcare and finances. Since the process would include the principal's confidential medical records in the DPOA for healthcare, it would be unethical for the broker to provide them, and medical practitioners do not need to know the patient's financial situation.


The springing power of attorney establishes the requirements under which a durable POA will become operational. Before the DPOA takes effect, the springing POA specifies the type of occurrence or degree of incapacitation that must occur. A power of attorney may be inactive until it is activated as a DPOA due to a negative health event.


What's The Difference Between a General and a Special Power of Attorney?


A general power of attorney is broader than a special power of attorney, which gives the agent authority for a limited set of acts under a limited set of circumstances—such as buying or selling a house, withdrawing money from an account, or operating a company.


A general power of attorney gives the Estate Lawyer the legal authority to act on behalf of the principal in both financial and legal matters. An individual who will be out of the country for a year may delegate broad authority to an agent to handle personal and business financial transactions, bill payments, life insurance purchases, charitable contributions, real estate management, and tax returns. To be legally binding, a special power of attorney will need to be notarized.


Particular Points to Consider


If the principal of a power of attorney dies or becomes incapacitated (unable to grant that power due to an accident or mental illness), a power of attorney becomes inactive. A special power of attorney, on the other hand, may be made to last.


A durable power of attorney should legally allow the agent to work on behalf of the principal even if the principal becomes incapacitated, such as as a result of a head injury or Alzheimer's disease. The agent's right to act and make decisions on behalf of the principal under a durable power of attorney will last until the principal's death. The court may enforce a conservatorship or guardianship on a person who does not have a permanent power of attorney in place and cannot conduct a special power of attorney.

When a person dies, the special power of attorney becomes null and void, and the person's final will and testament take precedence.

If You Were the Agent for the Deceased


Maybe your parent passed away recently, and you were identified as his representative in a power of attorney (POA). You're the one he'd like to take care of some of his business matters. The POA empowered you to act on his behalf in various financial circumstances, such as purchasing or selling real estate on his behalf or simply paying his bills.


You may think that after his death, you can keep paying his bills and settling his accounts, but you shouldn't and can't—at least not unless you've been appointed as the executor in his will or if the court appoints you as the administrator of his estate if he didn't leave a will.


POA Agent vs. Estate Executor


The probate court may grant authority to act on a deceased person's estate in either case, with or without a will, to an applicant who may or may not also be the agent under a power of attorney. The death of one of the characters divides the two roles.


However, in some situations, the person listed in the POA may also be named the estate's executor or an administrator. If you're still appointed as the executor or trustee, you'll have control over the deceased's bank accounts and other properties before possession can be transferred to living individuals.


After Death Power of Attorney


The power of attorney you have for your parent is null after he passes away. Since he can't legally keep money or land, the deceased person no longer owns anything for you to manage on his behalf.

Although the POA can allow you to make financial transactions on his behalf, he no longer owns the property or the funds over which you have control. Since it belongs to his estate, it can only be handled by the executor or trustee of his estate during the probate phase.

Many financial institutions, in practice, automatically freeze the accounts of deceased persons when they hear of their deaths. The freeze will remain in effect until the executor or trustee of the estate contacts them. If you tried to use the POA, it would be rejected.


When there's a Will, there's a Way.


Probate is allowed to pass property to living heirs because people can no longer legally own property after they die. If your father had a bank account or other property in his sole name, his will must be deposited with the probate court soon after his death.


This starts the probate process, which will allow his property to be legally distributed to his living beneficiaries. This is the executor's responsibility appointed in his will, who is also in charge of putting the estate through the probate process.


If There Isn't a Will


Even if the decedent didn't leave a will, the deceased's property would also go through probate to complete the transfer of ownership. The main distinction is that the court would distribute his property according to state law rather than his desires as expressed in a will.


If the decedent did not leave a will, the court would appoint an administrator to settle the estate. If the deceased also has no surviving spouse or if his surviving spouse and other children agree that you should do the job, you will apply to the court to be named as administrator, and then the court is likely to agree.


Alternatives


It may also make a difference in your parent's bank account, or other assets are excluded from his probate estate for any reason. Only properties that your parent holds in his sole name require probate. To pass these assets to living beneficiaries, a legal process is required.


However, if your parent named you as a co-owner of his bank account or even on the deed to his house, granting you "freedom of survivorship," the account or property would transfer to you automatically and directly when he dies. There will be no need for these properties to go through probate.


You will have control of these properties, but you will no longer be responsible for paying your parent's debts with them because probate often takes care of his final bills. You'd be liable for any debts you co-signed with the deceased, just as you were during his lifetime.


Durable Power of Attorney for Financial Matters

  • A financial POA is a legal document that authorizes a trusted person to act on the principal-behalf agents in financial matters. The former is also known as an attorney-in-fact, while the principal-agent is the one who grants authority. A general power of attorney is another name for this type of POA. A Financial PA is a legal document that allows you to make financial decisions on your behalf.

  • A power of attorney (POA) is a legal document that gives someone the power to act on someone else's behalf. The POA's authority may be wide or narrow, restricting the agent to very specific responsibilities in certain situations. Agents appointed in POAs are legally able to make financial, land, and/or medical decisions on behalf of the principal. When the principal is sick, disabled, or physically unable to sign vital paperwork, a POA is usually given.

  • A general power of attorney or a power of attorney of property is another name for financial power of attorney document. When the principal cannot handle his or her finances, the agent is given the authority to do so.

The agent has legal authority to handle the principal's finances and property, to make all financial decisions, and to perform all financial transactions that fall within the agreement's scope. The person who has been granted POA is bound by the agreement and cannot act in any way that is not stated in a power of attorney.


The agent is legally bound to make decisions that are consistent with the principal's desires. However, he or she still has complete autonomy before that authority is questioned and/or removed in a court of law.


Financial powers of attorney are automatically considered durable in some jurisdictions, which means they stay in place even though the principal becomes incapacitated. If the principal wishes them to be long-lasting, they must provide the information in a power of attorney, along with other details regarding the powers the principal is granting.