A power of attorney is a legal document allowing another person to represent you in various matters. A power of attorney ends if you become mentally disabled and unable to act for yourself. A durable power of attorney lasts even when you are disabled and unable to act for yourself, otherwise known as incapacitation. A California durable power of attorney allows your family to avoid going to court for a conservatorship proceeding. A conservatorship proceeding is a process in which a judge appoints someone to take care of your finances, if you are ever incapacitated. When you create a California durable power of attorney, the person you appoint as your agent becomes the “attorney-in-fact,” while you are referred to as the “principal”. You can use a durable power of attorney to plan for your financial matters. If you want to plan for your future healthcare needs, you need to create a document similar to a power of attorney called an advanced healthcare directive to deal with your medical decisions. While you can give the agent power of attorney over a range of financial matters, such as signing sale documents, filing your tax returns, or paying your bills, you can also limit their power. Under California law, your agent cannot write or create your will for you, although they can create or change a trust. Your agent should be someone you trust. An agent cannot use your assets for personal use unless you allow it in the document creating the power of attorney. Section 507 of the California Penal Code provides some protection; if your agent misuses your funds fraudulently for his own use, he can be charged with embezzlement.

Creating A California Durable Power of Attorney

After you have picked someone to be your agent, you should decide what powers and abilities you want them to have over your affairs, or what you would like to limit in addition to the limits under the law. You can then write a document that transfers this power, making sure it complies with California law. You can contact A People’s Choice for experienced, high quality, non-attorney help with preparing your legal documents to create a California durable power of attorney. To make sure you are creating a durable power of attorney that covers you if you become incapacitated, and not just a power of attorney, you have to use specific language in your document that indicates this as your intent. The California Probate Code, section 4124, states that using the following language in writing your document will create a California durable power of attorney:

  • For a California durable power of attorney that would be effective immediately, “this power of attorney shall not be affected by the subsequent incapacity of the principal,” and
  • For a California durable power of attorney that would take effect after you are incapacitated, “this power of attorney shall become effective upon the incapacity of the principal.”

Finally, you must sign the document, or if you cannot physically sign the document, you can have someone else sign the document, as long as you watch the person sign. The document must also be signed by two witnesses other than the agent, and it must also be notarized.

Canceling a Durable Power of Attorney

If you change your mind and decide you no longer need a durable power of attorney, or you wish to change the agent, you have to formally cancel the document in writing. After revoking the agent’s authority in writing, you have to make sure that you tell any people or organizations that had a copy of the original durable power of attorney document. If you change the agent or remove him as your agent but do not tell anyone, then the agent can continue to act as though he is acting on your behalf. By delivering this new document, you let the people or organizations that the agent was working with on your behalf know that the agent no longer has the legal right to act on your behalf. This is one way to protect yourself from liability if the agent acts without your authority.

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If you are reviewing your estate planning needs and want to cancel or create California durable power of attorney, contact A People’s Choice for low-cost legal document assistance. Although we cannot give legal advice, A People’s Choice can help you in preparing all the required legal documents without having to hire a lawyer.

If you need more information about estate planning, do not hesitate to call our office. A People’s Choice has been providing self-help legal document services for over 35 years and has established an excellent reputation in the community.  When you are ready to go ahead with your paperwork, information can be provided to us through our convenient online system, over the phone or in person.

A People’s Choice provides nationwide estate planning document preparation for living trusts, wills, powers of attorney and healthcare directives and offer low-cost package pricing or individual documents.