A power of attorney is a legal document that allows another person to represent you in various legal matters. However, a power of attorney ends if you become mentally disabled or unable to act for yourself. On the other hand, a durable power of attorney lasts even in the case of incapacitation. Under these circumstances, a California durable power of attorney allows your family to avoid going to court for a conservatorship proceeding.
How Does a California Durable Power of Attorney Work?
Some people use durable powers of attorney to plan for financial matters. However, if you want to plan for your future healthcare needs, you need to create a document similar to a power of attorney called an advance healthcare directive.
When you create a durable power of attorney, the person you appoint as your agent becomes the “attorney-in-fact”. On the other hand, you are referred to as the “principal”.
Limitations of Power
Your power of attorney can give your agent power over a range of financial matters. For example, you may allow them to sign sale documents, file your tax returns, or pay your bills. However, the state of California limits agents’ power. Plus, you can add further limitations depending on your preferences.
For example, under California law, your agent cannot write or create your will for you. That said, they can create or change a trust, so be sure to include them in that document. Furthermore, an agent cannot use your assets for personal use unless you allow it in your power of attorney. In fact, under Section 507 of the California Penal Code, if your agent misuses your funds fraudulently, he can be charged with embezzlement.
How to Create a California Durable Power of Attorney
After you have selected an agent, you should decide what powers and abilities you want them to have. Also, determine what power you would like to limit in addition to the limits under the law. Then, you can write a document to transfer this power, ensuring it complies with California law. Remember, you can contact A People’s Choice for experienced, high quality, non-attorney help with preparing your legal documents!
Tips for Your Forms
When creating your document, it’s important to ensure you are creating a durable power of attorney. In other words, do not accidentally create a regular power of attorney. Your document should cover you if you become incapacitated. Therefore, you must use specific language in your document that indicates your intent. More specifically, California Probate Code section 4124 states that the following language 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. If you cannot physically sign, someone else can do so as long as you are watching. Additionally, two witnesses other than the agent must also sign before the document is notarized.
Canceling a Durable Power of Attorney
If you 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. Then, you have to alert anyone with a copy of the original document of the change. In fact, if you change or remove an agent but do not tell others, the agent can lie about acting on your behalf. Thus, delivering your new document is an important way to protect yourself from liability if the agent acts without your authority.
A People’s Choice Can Help
If you are reviewing your estate planning needs and want to cancel or create a California durable power of attorney, contact A People’s Choice for low-cost legal document assistance. Although we cannot give legal advice, we can help you prepare legal documents without having to hire a lawyer. When you are ready to go ahead with your paperwork, you can provide us with information 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 offers low-cost package pricing or individual documents.
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