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

Updated: Apr 22, 2022

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.


Other Powers of Attorney vs. Financial Powers of Attorney


One form of POA is a financial power of attorney. Depending on the application, there are a variety of other types.

  • Power of Attorney with Restrictions

  • A restricted POA gives the agent very limited authority and usually specifies an end date for the contract. For example, if a family member or acquaintance is unable to sign important paperwork at a particular time, they may designate them as a restricted POA.

  • In other situations, the agent might be able to withdraw cash from the bank for the principal using this POA. A nondurable power of attorney is also known as a limited power of attorney.

  • Power of Attorney for Health Care

  • A medical power of attorney is another name for this type of POA. It empowers the agent to make important medical decisions about the principal's health care, especially if they become seriously ill or incapacitated.

  • Emergency Power of Attorney

  • When the principal becomes incapacitated and unable to make decisions on their own, a springing POA takes place. To be accurate, the document should define incapacity precisely so that there is no ambiguity about when the agent will begin working on behalf of the principal.


What Is a Health Care Power of Attorney?


A healthcare power of attorney is a legal document that grants an individual the right to make healthcare decisions on your behalf. Your agent would have the same ability as you to agree to treatment and access medical records. There are a few decisions, however, that an agent cannot agree to:

  • Commitment to a psychiatric hospital

  • Electroshock therapy

  • Lobotomy

  • Sterilization

  • Abortion

Unless your healthcare power of attorney specifies that it takes effect immediately, it will not take effect until your physician decides that you lack ability. It will become ineffective once you regain capacity.


Any directions you gave to your agent must be followed by your agent. If you haven't given your agent any instructions, they will have to make decisions in your best interests. If you object to a healthcare decision, your agent will not be able to make it for you.

With a health care power of attorney, the guardian will make decisions about your medical care, such as where you will live and who will provide meals and transportation.

A healthcare power of attorney differs from a living will. A living will helps you to provide written guidance to your physician about specific end-of-life decisions. An advance health care directive combines end-of-life directives and a power of attorney for health care into a single text.


An attorney licensed in California can build power of attorney for you or do it yourself. If you obey the directions and do not make any changes to the forms, you will have legal power of attorney.


Other Options for Obtaining a Power of Attorney


Section 4701 of the California Probate Code contains a form for an advance health care directive. Part one of the form is a healthcare power of attorney, and part two is where you can list any end-of-life orders. You have the option of filling out either one or both pages.


The California Probate Code also provides the universal statutory power of attorney. This type of power of attorney allows you to give your Estate Lawyer broad authority over your financial and personal affairs. Section 4401 of the California Probate Code contains the details.


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There is no room for witness signatures or a notary public's acknowledgment on the uniform statutory power of attorney type. If you use the legislative form, make sure it is properly notarized or witnessed; otherwise, it would be invalid.


Steps to Take After Obtaining a Form


Before you create a power of attorney, you must first determine who will be your Estate Lawyer and what powers you want to grant them. Take the following steps:


1. Choose a representative.

  • The decisions taken by your representative would carry the same legal weight as if they were made by you. An agent should be responsible, trustworthy, and knowledgeable about your needs. For different powers of attorney, you can select different officers.

  • You can name more than one agent in the same power of attorney, but unless you specify otherwise, they will have to make decisions unanimously. Co-agents should be avoided in general to prevent misunderstanding and confrontation. If your former agent is unable to come through, you can still appoint successor agents to make decisions.

  • The following individuals are not permitted to act as your representative under a healthcare power of attorney:

  • Your official or primary healthcare provider (usually the attending or primary physician)

  • A parent who works at the same facility as you, a hired worker, or regular employee of the health care institution, community care facility, or residential care facility where you are receiving care.

  • A court-appointed mental health conservator, although there are a few exceptions to this regulation.

2. Decide what powers the agent can have.

  • Do you want your agents to have complete control over all decisions that you can make for yourself, or do you want them to have any limitations? You may limit their authority to a single act, medical decisions, or financial transactions.

  • Limiting their powers should not go so far as to prevent them from acting on your behalf if you become incapacitated.

3. Choose witnesses


Your power of attorney must be signed by two witnesses or a notary public in California. The following individuals are not permitted to testify under California law:

  • Minors are those who are under the age of eight

  • Under a power of attorney, the individual will act as your Estate Lawyer.

  • Your healthcare company or an employee of theirs

  • An employee or provider of a community or residential care facility for the elderly.

  • Either of the two witnesses to a healthcare power of attorney cannot be a partner or someone who is entitled to inherit from your estate when you die.

4. Complete your form and double-check that it complies with California law.

  • Make sure you specify which powers you're giving your agent when filling out your form. Every witness must make a statement about your mental state and their relationship to you as part of your healthcare power of attorney.

  • If you want your financial power of attorney to be successful if you become incapacitated, it must contain one or more of the following phrases or language:

  • "This power of attorney shall not be compromised by the principal's subsequent incapacity."

  • "This power of attorney shall take effect upon the principal's incapacity."

  • Your power of attorney becomes effective on the date you sign it if you choose the first choice. If you take the second choice, it will only work if you become incapacitated. Your power of attorney will expire if you do not use any of these terms or related language when you become incapacitated.


5. Fill out and sign your power of attorney

  • Make sure power of attorney satisfies the following legal conditions before signing it:

  • It must have the date you completed it.

  • You must sign it, or if you are unable to sign, another adult in your presence and at your direction will sign in your name.

  • Each witness or the notary public must witness your signature on the power of attorney or your acknowledgment that it is your signature.


Who should I appoint as my Estate Lawyer?


You may appoint any competent person as your Estate Planning Attorney as long as he or she is 19 years old or older and willing to represent you. It is important that you carefully consider who you would appoint to serve as your Estate Planning Attorney. He or she may have considerable control and responsibilities over the financial affairs.


Choose someone you can fully trust and who is a savvy money manager. While most people select their spouse, child, or other loved one to serve as their attorney, and the appointment should always be carefully considered. You should think about whether the burden of serving as your attorney would put undue stress or strain on the individual or your relationship, in addition to their skills and trustworthiness.


You have the option of selecting from several Estate Planning Attorneys if you so choose. If you do this, you must specify whether you want them to work together or individually in the text.


Suppose you don't have any family or friends who are willing or capable of acting as your solicitor. In that case, you can hire a trusted company or the Public Guardian and Trustee (a government official). You will be paying fees for their services in any case.


What Your Estate Planning Attorney Has Control Over


The scope of your attorney's powers is determined by the powers you grant them (for instance, if you made a limited power of attorney granting your son only the authority to deposit your pension checks, your son will only have the legal authority to do so).


If you give your Estate Planning Attorney a general power of attorney with no restrictions, your Estate Planning Attorney would have the authority to do something financial or legal that you can do for yourself. Cashing your checks, withdrawing money from your bank account, coping with your income taxes, and purchasing or selling property on your behalf are all examples of this.


When Do Powers of Attorney Take Effect?


A power of attorney will take effect as soon as immediately after it is signed, but it is not required to be used right away if you do not need assistance right away. Make sure your solicitor is aware of when you want them to begin working on your behalf. Suppose you prepare a restricted power of attorney for a particular reason or for a specific period of time (for example, to manage your banking when you are out of town). In that case, it will expire when the specified tasks are completed and/or when the document's end date is reached.


If you prepare a general attorney instead, a power of attorney will usually remain in place forever until you terminate it or until you or your attorney dies, subject to certain exceptions. Furthermore, unless you have included an everlasting provision in your power of attorney, your power of attorney will be terminated if you become mentally incapable.


Revocation of a Durable Power of Attorney


You can usually revoke (cancel) your power of attorney at any time if you are not mentally capable of doing so. To revoke a power of attorney, submit a written notice to your attorney, stating that a power of attorney is revoked immediately. Notify all banks, companies, organizations, and people with whom your attorney does business in writing, informing them that a power of attorney has been revoked and requesting that all copies of the document be destroyed.


Creating a new power of attorney does not mean that an existing one is automatically revoked. It's possible to have several powers of attorney active at the same time. If you want to make sure you only have one power of attorney in place, include the phrase "I revoke any and all powers of attorney I have previously created" at the start of your current power of attorney.


Power of Attorney Forms for Banks


Banks also require their customers to use their own power of attorney forms. They have no right to force you to use their type if you already have a power of attorney that covers banking matters. You could request a meeting with the bank's manager or, if necessary, contact an Estate Lawyer.


Real Estate Powers of Attorney


There are specific conditions if you want your solicitor to be able to sell your real estate property or negotiate with mortgages or easements on your behalf. You should sign a power of attorney in the presence of an Estate Lawyer or notary (who must also sign), and you must file it with the land title office and follow all other legal provisions. If you wish to use these powers in your power of attorney, seek legal advice.


Putting Together a Power of Attorney Document

  • If your power of attorney is to deal with real estate, you must go to an Estate Lawyer or notary public.

  • You should plan decisions on health care ahead of time.

A power of attorney covers only financial and legal matters. You can make a "Representation Agreement" naming whoever you want to make health care and treatment decisions for you if you want to prepare ahead and choose who can make those decisions for you in the event that you are no longer able to.


I'm the beneficiary of a living trust


A living trust does not cover land management outside of the trust, nor does it cover personal decisions like healthcare. Suppose the successor trustee of the trust will be able to make financial decisions about trust assets. In that case, the trustee does not have the authority to make decisions about assets and properties not named in the trust. Since trusts do not cover healthcare, trustees cannot manage these matters unless they are appointed as an agent bound under a power of attorney or an advanced healthcare directive.


Find A Estate Planning Attorney in Los Angeles


1000Attorneys.com is a California Bar Association Certified Lawyer Referral Service that can refer you to an Estate Lawyer best fit to handle their case. An Estate Planning Attorney can guide you through the complicated process of getting a Power of Attorney. You may contact us through our 24/7 Live Chat (or complete our case details submission form) for a free initial consultation.

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