California Power of Attorney Laws – What You Need to Know

A power of attorney (POA) is a legal document that gives someone else the authority to act on your behalf in financial, medical, or other important matters. California has specific statutes, requirements, and procedures that govern how POAs are created, used, and revoked. Understanding the California power of attorney laws can help guide you as you make choices to secure your future.

Types of Power of Attorney in California

California recognizes types of power of attorney, and each serves its own purpose.

• General power of attorney: This grants the agent broad powers to act on behalf of the principal in financial and legal matters. It becomes invalid if the principal becomes incapacitated unless it’s made durable.
• Durable power of attorney: A durable POA stays in effect even if the principal becomes incapacitated. This is important for long-term planning and is commonly used in estate planning and elder care. California law states that a POA is durable if it explicitly states that it is not affected by the principal’s subsequent incapacity.
• Limited/special power of attorney: This type grants the agent authority to perform a specific act or transaction, such as selling a home or managing a bank account. This POA expires once the action is complete.
• Medical/healthcare power of attorney: In California, this can be combined with a living will to create an advance healthcare directive. It gives someone the power to make medical decisions on your behalf if you’re incapacitated.

Legal Requirements for Creating a Power of Attorney in California

To be valid in California, a POA must comply with certain legal requirements. For starters, the principal must be at least 18 years old and mentally competent when the POA is executed. Mental capacity is evaluated under California law as the ability to understand the nature and consequences of establishing a POA. The POA must also be created voluntarily and without coercion.

All POAs must be in writing. California law does not specify the format, but the document must clearly identify the principal, agent, and the powers being granted. The principal must sign the POA, but may direct another person to sign in their presence if they are unable to. Financial POAs may require notarization or two adults witnessing the signing.

Rights and Duties of the Agent

An agent under a California POA has rights and fiduciary duties. The agent must act in the best interests of the principal. They’re legally bound to avoid self-dealing or conflicts of interest. The agent must be loyal and act in good faith, preserving the principal’s estate plan.

The agent can only do what is expressed in the document. Unless specifically authorized, they cannot:

• Make or change a will
• Vote on behalf of the principal
• Make decisions after the principal’s death

Agents should also maintain detailed records of all financial transactions and be ready to provide them upon request.

Abuse and Misuse of Power of Attorney

POAs may try to misuse their power, particularly if the principal is vulnerable due to their advanced age or failing health. Examples of abuse may include making unauthorized withdrawals from accounts, misappropriation of property, or identity theft, which occurs in 25% of elder scam reports.

California law takes POA abuse very seriously. Each year, 200,000 instances of elder abuse are reported in the state. California offers civil and criminal remedies under the Elder Abuse and Dependent Adult Civil Protection Act. If POA abuse is suspected, file a petition with the probate court and report the abuse to Adult Protective Services or local law enforcement. You can also seek a restraining order or conservatorship.

To prevent abuse, choose a trustworthy agent and notify family and trusted friends of the arrangement. Consider appointing co-agents to provide checks and balances in your POA plan.

FAQs

Q: What Makes a Power of Attorney Legal in California?

A: In California, a power of attorney becomes legal when it meets specific requirements. These include being in writing, signed by the person granting authority, and either notarized or signed in the presence of two qualified adult witnesses. For healthcare POAs, the document must comply with the California Probate Code. The granting authority must be mentally competent at the time of signing.

Q: What Three Decisions Cannot Be Made by a Legal Power of Attorney?

A: A legal POA cannot make decisions that involve creating or revoking a will on behalf of the principal. They also can’t vote in public elections for the principal or make any decisions after the principal’s death, such as distributing assets or acting as an executor, unless named in the will to do so. These restrictions protect the principal’s autonomy. Establishing a will or trust can further protect your rights in the event of your passing or incapacitation.

Q: Who Can Override a Power of Attorney in California?

A: A power of attorney can be overridden by the principal, also called the granting authority, at any time, as long as they are mentally competent. Courts also have the authority to override a POA if the agent is found to be abusing their power or acting outside of their scope of authority. Family members and interested parties can petition the courts to review the POA. The creation of a new POA revokes the previous one.

Q: Does a Power of Attorney Need to Be Recorded in California?

A: A power of attorney does not need to be recorded in most situations. If the POA is used for real estate transactions, such as buying, selling, or transferring property, it must be notarized and recorded with the county recorder’s office where the property is located. For Los Angeles County properties, the registrar-recorder’s office is located at 12400 Imperial Highway in Norwalk. The recording provides a public record of the agent’s authority to act on real estate matters.

Contact a California Power of Attorney Lawyer Today

The knowledgeable team at Meinzer Law Firm, PC, can help you better understand the intricacies of California power of attorney laws. We can guide you through each step of the process to establish a clear and legal POA.

Having a POA in place can give you peace of mind in times of illness, incapacity, or travel. Reach out today to schedule a consultation to speak with one of our dedicated attorneys.