Understanding Power of Attorney: Definition, Purpose, and Types

People create powers of attorney (POAs) to manage their affairs if they become mentally incapacitated or otherwise unable to make decisions. A POA affords peace of mind and continuity in medical, financial, personal, and legal matters.

This article focuses on obtaining a power of attorney in California, outlining the key steps and legal considerations.

What is a Power of Attorney (POA)?

A power of attorney in California is a legal instrument with which one person appoints another to act on their behalf. The document empowers the latter entity (the "agent," "attorney-in-fact," or "proxy") to sign documents, make decisions, or represent the former (the "principal") in various legal contexts.

A POA may designate a broad spectrum of ongoing responsibilities for an agent, such as handling tax matters, managing investments and properties, applying for government benefits, and overseeing the principal's personal care and family maintenance. At the same time, it may limit an agent to particular actions. For instance, the scope of authority for a California Medical Power of Attorney is the health and medically-related decisions of their principal.

California's Power of Attorney Law (Cal. Prob. Code §§4000 - 4545) sets out the state's prerequisites for legally-binding POAs. These include the principal possessing sound mental capacity to execute the POA and the agent being an adult (18 years or older).

Powers of attorney established in California persist until terminated by a specific event or revoked by the principal or their legal representative.

What Types of Power of Attorney are Available in California?

The California legislature acknowledges two main categories of powers of attorney:

• California Durable Power of Attorney (DPOA)
• Nondurable Power of Attorney

Each offers distinct protections to principals. DPOAs are more extensive and permanent, allowing an agent to act even after the principal becomes mentally or physically incapacitated. In contrast, nondurable POAs automatically terminate upon a principal's impairment or the conclusion of a stated transaction.

In addition, there are other more specific powers of attorney in California, such as:

• Springing Power of Attorney: This type of POA becomes effective upon a predetermined event or condition, such as a principal's hospitalization or a triggering event while the principal is overseas. A springing power of attorney may be durable or nondurable (Cal. Prob. Code § 4030).
• General Power of Attorney: This permits an agent to transact any or all business for a principal, excluding medical and other healthcare.
• Power of Attorney for Health Care: This paperwork allows an attorney-in-fact to make healthcare decisions when a principal becomes incapable. It is also called an Advance Health Care Directive or Medical Power of Attorney.
• Special (Limited) Power of Attorney: This authorizes an agent to act under circumstances explicitly outlined in the POA. For example, the document may authorize the agent to sell the principal's home or handle their retirement affairs.

Is Power of Attorney Public Record in California

No. Powers of attorney are not public records in California. However, recording a POA with a Clerk-Recorder's office files it among the California public records. As such, anyone can copy or see the document.

Note, however, that California law does not require the recordation of a power of attorney to demonstrate its validity.

How to Get Power of Attorney in California

Appointing a power of attorney in California is a significant matter that merits careful consideration. A POA grants extensive, often unsupervised, authority over another's affairs, including in unforeseen circumstances like an accident or illness. Thus, it is crucial to appoint a trusted person and understand the related state regulations.

Any person seeking to establish a power of attorney in California must satisfy the state's basic requirements, as outlined in Cal. Prob. Code § 4120 - 4130:

• Age and Competency: A principal and agent must be 18 years or older and of sound mind (i.e., able to comprehend the implications and purpose of the POA).
• Freewill: Both parties must enter the contract without coercion or external influence.

Individuals can enlist the services of an estate planning or family lawyer to guarantee compliance with California's legal and documentation standards and ensure the POA accurately conveys their wishes. An attorney can also advise on other supporting documents, such as a Last Will And Testament, Certificate Of Trustee, Or Do-Not-Resuscitate (DNR). However, someone more partial to the do-it-yourself approach may follow these steps.

Step 1. Defining the Agent's Powers

This is inarguably the most important step when drafting any power of attorney document. Given that one's proxy (agent) will make significant decisions and perform sensitive transactions on their behalf, it is necessary to consider what the agent can and cannot do.

A principal must identify areas of their life in which they require a proxy. For instance, they may want an agent to stand in long enough to complete a specific task in their absence or handle different financial, medical, family, and legal affairs.

Moreover, the principal must decide whether to assign that decision-making authority to one person or share it among a few trusted persons.

Step 2. Determine the Type of Power of Attorney

Some powers of attorney last a lifetime and permit the agent to make end-of-life decisions on the principal's behalf. Some require specific conditions to occur before becoming effective, while others terminate after a certain event or date.

As such, before signing a power of attorney, a prospective principal should consider factors such as their personal circumstances (age, health), the duration of the agreement, and the effective date or condition. These help determine what sort of power of attorney to create.

Step 3. Choose the Agent

Aside from the requirement to be of legal age and mentally competent, California does not limit who can serve as an attorney-in-fact. Intending principals are free to select from among their family, friends, neighbors, religious leaders, and even lawyers. However, the chosen proxy must be trustworthy and capable of acting in the principal's best interests.

Step 4. Draft or Complete the Power of Attorney Form

An individual may need to fill out a statutory form to create a POA in California. Cal. Prob. Code §4401 furnishes "legally sufficient" language to draft a general power of attorney (or Uniform Statutory Form Power of Attorney), and Cal. Prob. Code §4701 supplies the standardized health care power of attorney form.

Many California county government agencies, like Tulare, Lake, and Los Angeles, publish a blank Uniform Statutory Form Power of Attorney on their websites. Meanwhile, a fillable statutory advance health care directive form is available on the Office of the Attorney General (OAG) and state judicial branch websites.

One can also work with an estate planning lawyer or utilize an online service to prepare the correct POA form.

Note: Certain institutions, such as the California Public Employees' Retirement System (CalPERS) and California Franchise Tax Board (FTB), designate forms that consumers must use to delegate power of attorney.

Step 5. Print and Sign the Power of Attorney

After drafting the POA form, the next step is to print a hard copy and sign it in the presence of a notary public or two competent witnesses.

Step 6. Retain and Distribute Copies

It is recommended that physical copies of the signed or notarized POA be preserved, as these hold greater legitimacy. Digital copies can be created for added convenience.

The principal should give a copy to the agent in case they need it for a transaction—for example, to record a real estate transfer. They can also present copies to their doctor, lawyer, or family.

Alternatively, the principal may keep the document with their agent and inform the relevant parties of its existence should they become impaired.

What are the Signing Requirements for a Power of Attorney in California?

Cal. Prob. Code §§ 4120 - 4130 outlines the signing requirements for a power of attorney to guarantee its validity in California. According to the law:

• A principal must sign the power of attorney. They can ask someone else to sign the document on their behalf, but they must watch them do it.
• The POA must be dated and acknowledged before a notary or signed by at least two adult witnesses. An agent cannot stand as a witness.

Additionally, a person who wants their POA to be durable in California, besides appending the proper signatures, must have any of the following statements in the document:

• "This power of attorney shall not be affected by the principal's subsequent incapacity,"
• "This power of attorney shall become effective upon the principal's incapacity,"
• Or similar language conveying the principal's desire to keep the document valid even if they become incapacitated.

How Much Does it Cost to Get a Power of Attorney in California?

Different factors influence the final amount a person will pay to get a power of attorney in California, such as:

• The attorney fee (optional): Attorney fees vary based on location and additional services, with a person potentially paying up to $200 or higher for a standard POA.
• The notarization fee: Cal. Gov. Code § 8211(a) allows a notary public to charge a maximum notary fee of $15 per signature to acknowledge an instrument. Additional fees may be included if the notary offers mobile (travel) services.
• Online service costs (optional): There are fees associated with hiring someone other than a lawyer to draft, prepare, or review a POA.

Other charges may apply to amend, update, or record a POA.

When working with a third party to create a power of attorney, it is prudent to ask for a breakdown of costs. This allows the individual to compare prices with other providers or find alternative free or low-cost options.

Is it Necessary to Hire a Lawyer to Draft a POA in California?

No, an individual does not need a lawyer to draft a power of attorney in California. Anyone can design a POA using a statutory form and get it notarized without a lawyer. Still, seeking legal expertise has its advantages.

Attorneys have a profound understanding of the state's legal requirements. As such, they can advise on the appropriate forms and language clarifying the principal's desires, eliminating the need for the principal to research or take on the legal process themselves. In addition, attorneys can advise on the scope of an agent's powers, including pinpointing potential issues based on a client's circumstances.

Can I Revoke a Power of Attorney in California?

Yes, it is possible to revoke a power of attorney in California. Cal. Prob. Code § 4151 allows principles to revoke a POA per the terms of the agreement or in writing.

It is important to notify one's agent and other relevant parties (credit unions, hospitals, banks, tax boards) that possess the old power of attorney. Some institutions utilize specific forms for this process, like the Power of Attorney Declaration Revocation (FTB 3520-RVK), which is used to revoke a POA on file with the Franchise Tax Board in writing.

Notwithstanding, California protects attorneys-in-fact and third parties who may not have received a notice of revocation from liability.

How Long Does a Power of Attorney Last in California?

Generally, a power of attorney in California lasts until terminated or revoked. A principal can select an expiration date for the POA or extend the document's validity until the agent finishes a task or the purpose of the POA is fulfilled. Alternatively, a person can retain their POA until they cancel it or die (typically a durable power of attorney).

A power of attorney is also invalidated in California if the agent dies, becomes incapacitated, is removed by the principal, or resigns, and the document does not name a successor agent.

Still, it is important to determine if the institution where a power of attorney must be filed imposes an expiry date. For example, any POA filed with the Franchise Tax Board generally lasts six years. Upon expiry, the principal or other authorized party must submit a new POA to continue their POA relationship.

Can I Appoint Multiple Agents under Power of Attorney in California?

Yes. In California, a principal can appoint more than one person to act as their attorney-in-fact. These individuals can act jointly or independently, depending on the principal's preferences.

Alternatively, a person can designate an alternate agent to intervene when a first choice is unwilling or reasonably unavailable to serve (for example, absent or ill).

Either way, selecting dependable people who look out for one's best interests is essential.

What Happens if I Do Not have a Power of Attorney and Become Incapacitated in California?

When a person becomes incapacitated before executing a power of attorney, any interested person (often a family member or close friend) can approach a superior court to appoint a conservator, or adult guardian. The conservator will be responsible for ensuring the safety and well-being of the incapacitated person (called the "conservatee").

The superior court where a petition for conservatorship should be filed in California must have jurisdiction over the conservatee's residence. The court will only designate a conservator if the petitioner proves it necessary to promote and protect a person's well-being.

Does a California Power of Attorney Need to be Notarized?

No. The State of California offers intending principals two options to authenticate a power of attorney. One method is notarization: the principal can request acknowledgment from a notary public, in which case the party must personally appear before a notary public and certify that the signature on the document is theirs.

The alternative is a witness signatory. In this scenario, at least two neutral third parties must sign the POA. They must also witness the principal signing the document or acknowledging the signature or POA (Cal. Prob. Code. § 4122).