Power of Attorney - California Basics
California has very few legal requirements to create a valid Power of Attorney, which will be discussed through this post. This post will also explain what a power of attorney is, what it does, what it could/should be used for, and, finally, how to get a Power of Attorney.
What Is a Power of Attorney?
A Power of Attorney, commonly referred to as "POA", is nothing more than a simple legal document by which one person, typically referred to as "the principal," gives another person, usually called the "attorney-in-fact" or "agent" legal authority to act on his or her behalf.
Types of Power of Attorney Documents
Generally speaking, Power of Attorney documents can be described in two ways: (a) by the period of time in which power of attorneys are in effect, and (b) by the types of legal matters they cover.
Regarding the period of time that a power of attorney is in effect, under traditional law, a power of attorney became effective the moment it was signed by the principal, and ended if and when the principal became mentally incapacitated. (incapacitated means the person is unable to make or communicate decisions.) However, two additional options have become available:
Durable Power of Attorney - A durable power of attorney is one that continues even if the principal becomes incapacitated. Under California law, a Power of Attorney can be made "durable" by including the phrase: “This power of attorney shall not be affected by the subsequent incapacity of the principal" or with similarly worded language.
Springing Power of Attorney - A springing power of attorney is one that does not become effective until the principal becomes incapacitated. This allows you to avoid giving your agent/attorney-in-fact immediate authority. By its nature, a springing power of attorney is also a durable power of attorney. In California, a Power of Attorney can be made a "springing" by including the phrase: “This power of attorney shall become effective upon the incapacity of the principal."
b. Legal Matters
In regard to the specific legal matters covered, there are generally three types of Power of Attorneys.
General Power of Attorney - (commonly referred to as "Financial POA") - This type of POA gives the agent/attorney-in-fact broad authority in various legal matters.
Limited Power of Attorney - (commonly referred to as "Specific POA") - As the name states, a specific POA can be drafted to allow the agent/attorney-in-fact to act in a tight and specifically designated situations, such as, acting as a POA in medical transactions, or only for business or real estate transactions, or can even be drafted for a POA to represent you for a specific period of time, for example, if you are out of the county on vacation or business.
Healthcare Power of Attorney - Simply stated, this type of POA gives the agent/attorney-in-fact, the authority to make decisions about the principal's medical treatment and plan. It should be noted that this type of POA can only be exercised if the principal is unable to make those decisions for him or herself.
Basic Power of Attorney Requirements
California law on Power of Attorneys is light. The main laws and rules regarding California Power of Attorney can be found in the California Probate Code. However, a basic requirement for any power of attorney discussed above is that the principal must be at least 18 years old and must be of "sound mind." Also, different types of Power of Attorney documents have different requirements, such as being notarized.
This post is intended to provide you with a brief and simply overview and understanding of a Power of Attorney. As with any other area of law, Power of Attorney documents can get complicated and difficult to understand. Should you have any questions or concerns, please do not hesitate to contact us.