Decide the Type of Power of Attorney
There are four major types of power of attorney in California that you have to choose.
- Durable – Allows someone to act in the place of another for all financial decision making. Form is still valid if the person granting the power (‘Principal’) becomes incapacitated (Incapacitation is as someone who cannot think for themselves with a clear mind)
- General – Same as the Durable form except that if the Principal becomes incapacitated the form becomes void.
- Limited – Allows someone to act in the place of another for a specific or single duty. Upon the completion, the form becomes void.
- Medical – Allows someone to act in the place of another for all medical decision making.
California Rules Concerning Power of Attorney
California Probate Section 4121. A power of attorney is legally sufficient if all of the following requirements are satisfied: (a) The power of attorney contains the date of its execution. (b) The power of attorney is signed either (1) by the principal or (2) in the principal's name by another adult in the principal's presence and at the principal's direction. (c) The power of attorney is either (1) acknowledged before a notary public or (2) signed by at least two witnesses who satisfy the requirements of Section 4122. California Probate Section 4122. If the power of attorney is signed by witnesses, as provided in Section 4121, the following requirements shall be satisfied: (a) The witnesses shall be adults. (b) The attorney-in-fact may not act as a witness. (c) Each witness signing the power of attorney shall witness either the signing of the instrument by the principal or the principal's acknowledgment of the signature or the power of attorney.
California Probate Section 4123. (a) In a power of attorney under this division, a principal may grant authority to an attorney-in-fact to act on the principal's behalf with respect to all lawful subjects and purposes or with respect to one or more express subjects or purposes. The attorney-in-fact may be granted authority with regard to the principal's property, personal care, or any other matter. (b) With regard to property matters, a power of attorney may grant authority to make decisions concerning all or part of the principal' s real and personal property, whether owned by the principal at the time of the execution of the power of attorney or thereafter acquired or whether located in this state or elsewhere, without the need for a description of each item or parcel of property. (c) With regard to personal care, a power of attorney may grant authority to make decisions relating to the personal care of the principal, including, but not limited to, determining where the principal will live, providing meals, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment. California Probate Section 4124. A durable power of attorney is a power of attorney by which a principal designates another person as attorney-in-fact in writing and the power of attorney contains any of the following statements: (a) "This power of attorney shall not be affected by subsequent incapacity of the principal." (b) "This power of attorney shall become effective upon the incapacity of the principal." (c) Similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent incapacity. California Probate Section 4125. All acts done by an attorney-in-fact pursuant to a durable power of attorney during any period of incapacity of the principal have the same effect and inure to the benefit of and bind the principal and the principal's successors in interest as if the principal had capacity.
Do States Recognize Power of Attorney formed and Signed In Another State?
Though many powers of attorney are recognized in other states, it may be a good idea to get a new power of attorney when you move to a new state. For example, Connecticut law does recognize powers of attorney to convey real estate unless the power of attorney is signed by two witnesses and notarized, even if the previous state did not require such formalities. A company with which you hope to do business may not feel comfortable accepting a power of attorney that comes from another state even if it is technically valid in the company’s state. It can be especially important to get a new medical power of attorney, since different states define medical terms differently: doctors may not know how to interpret a power of attorney made in a state with different definitions. Some Power of Attorney documents expressly state that “This Power of Attorney shall be effective in any other State”. Contact your trusted legal professional as to the validity of your power of attorney.
About the Author
Attorney Steven Peck has been practicing law since 1981. A former successful business owner, Mr. Peck initially focused his legal career on business law. Within the first three years, after some colleagues and friend’s parents endured nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law.