Understanding California’s Durable Power of Attorney Law

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A power of attorney (POA) refers to a document in which you name an agent or an attorney-in-fact to make decisions on your behalf if you become incapacitated and unable to make these decisions for yourself.

A power of attorney is one of the cornerstone documents inside a California estate plan that can give you peace of mind that if you cannot speak up for yourself, someone else can step forward to protect your interests. The selection of the appropriate agent in a power of attorney is vital for executing your intentions.

What Does It Mean to Say Something Is a California Durable Power of Attorney?

Each state has its own rules related to things like a last will and testament or a power of attorney. As an estate planning attorney can tell you, it’s essential to have these critical documents to protect yourself and make things easier for your loved ones if something happens to you.

In simple terms, a California durable power of attorney authorizes an agent of your choosing to handle your financial affairs if you are unwilling or unable to manage them on your own. You are authorizing this person to make financial decisions and actions on your behalf, which is a significant amount of responsibility to give to someone else. You must select this person carefully by considering whether you can trust them to act in your best interests.

Why Is a California Durable Power of Attorney Important?

An estate planning lawyer can help you to draft a durable power of attorney with your best interests in mind. You want to avoid a situation in which it is not possible to contact your relatives easily or in which the court must appoint someone else to serve in this role as your financial caretaker.

Such a scenario adds to significant delays, particularly as it relates to important financial transactions you may need to have undertaken during a time when you are otherwise incapacitated. The durable financial power of attorney remains active if the principal or the person who created it becomes incapacitated.

Furthermore, if you have a loved one or trusted friend who understands your wishes and will protect them in the event of incapacity, it gives you peace of mind that even when you can’t speak for yourself, someone else can handle these crucial affairs. Due to the high level of trust involved, you should only appoint a confident and willing person to serve as your power of attorney agent.

Creating a Durable Power of Attorney

A durable power of attorney should be among other tools such as a last will and testament in your California estate plan. If you already have a health care power of attorney, you have already covered the durable power of attorney issues. However, with any other type of power of attorney document, you will need to include language inside that expressly makes it durable to ensure that your chosen agent is properly authorized to make decisions for you.

You can discuss the specifics of what your agent can and cannot do with a power of attorney directly with your estate planning lawyer. Although your power of attorney agent might also be called an attorney-in-fact, you are not obligated to choose a lawyer for this role.

There are a few things a power-of-attorney agent cannot do regardless of the terms of your document, including:

  • Changing or creating your will
  • Making decisions on your behalf after you’ve passed away (unless you have also appointed them as the estate executor)
  • Transferring the POA agent role to someone else

Getting Help with a Durable Power of Attorney

You should always work with a California estate planning lawyer to ensure that all forms or paperwork for a durable power of attorney are completed properly. After the form has been completed, signed, and determined to have met state requirements, it becomes valid immediately.

It is essential to take care when choosing who will serve in this role. You can also revoke a power of attorney at any time for any reason as long as you have the necessary mental competence. You can work directly with your estate planning lawyer to draft an official statement revoking the existing power of attorney document. The document must include your statement, the name, date, the assigned agent, the initial date of the first power of attorney document, and your signature. You should also provide a copy to your agent. One of the most common mistakes people make related to a durable financial power of attorney is failing to update the document after getting a divorce. As with all estate planning documents, it’s critical to ensure it has adapted to your current life circumstances.

Do you have questions about California estate planning and durable power of attorney? Give California Probate and Trust, PC a call to schedule an appointment at (916) 674-2066.

Get a copy of our free guide, The 7 Reasons Why You Need An Estate Plan by calling our 24-hour hotline at 916-603-2782. Leave us your name, phone number, and mailing address and we’ll send the guide to you ASAP.

Listen to California Probate and Trust, PC and Estate Planning Attorney Dustin MacFarlane Discuss How to Start with the End in Mind on his podcast, Legally Speaking.


Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

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