Power of Attorney Requirements in California

Power of Attorney Requirements in California

by Edward A. Haman, Esq., August 2017

To create a valid power of attorney, California has a few legal requirements. This article will explain these requirements, the various types of power of attorney documents, and how you can get a power of attorney.

What Is a Power of Attorney?

A power of attorney, or POA, is a legal document by which one person (called the principal) gives another person (called the agent or the attorney-in-fact) legal authority to act on his or her behalf.

What Are the Types of Power of Attorney Documents?

In general, power of attorney documents are described in two ways: by the time period in which they are in effect, and by the types of legal matters they cover. The California legislature has created standard POA forms, which will be referred to in this section and will be discussed further below.

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 properly signed by the principal, and ended if the principal became mentally incapacitated. (In general, incapacitated means that the person is unable to make or communicate decisions.) In more recent times, two additional options have become available:

  1. Durable Power of Attorney. A durable power of attorney is one that continues even if the principal becomes incapacitated. In California, 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 “This power of attorney will continue to be effective even though I become incapacitated."
  2. 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 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 power of attorney by including the phrase: “This power of attorney shall become effective upon the incapacity of the principal."

Regarding the specific legal matters covered, there are basically three types of POAs:

  1. General Power of Attorney. This type of POA gives the agent broad authority in a number of legal matters, with the exception of health care decisions. It is also commonly referred to as a financial power of attorney.
  2. Limited Power of Attorney (also called a Specific Power of Attorney). A California limited power of attorney can be prepared to allow your agent to act only in a narrow, specifically defined situation. For example, you can authorize your agent to represent you only in a single real estate transaction, or to represent you for a short period of time while you are out of the country. This can be accomplished with a unique, specifically prepared document, or by using the standard form approved by the California legislature and adding the detailed limitations you desire.
  3. Power of Attorney for Health Care. This type of document authorizes your agent to make decisions about your medical treatment, but only if you are unable to make or communicate such decisions. By its very nature, a power of attorney for health care is both a springing and a durable power of attorney.

What Are the Legal Requirements for a Valid Power of Attorney in California?

The law regarding powers of attorney in California is found in the California Probate Code, beginning with Section 4000. A basic requirement for any POA is that the principal must have the same legal capacity that is required to enter into a contract (generally, that the person is of sound mind and at least 18 years of age).

A power of attorney dealing with financial matters must be signed by the principal either before a notary public, or before two witnesses. If you are authorizing your agent to handle real estate matters, it should be notarized so that it can be recorded.

A health care power of attorney must be signed by the principal before two witnesses, and the two witnesses must also sign the document. The witnesses may not be your agent, your health care provider (this includes community and residential care facilities), or an employee of your health care provider.

How Do You Get a Power of Attorney?

The California legislature has created both a general financial power of attorney form and a health care power of attorney form. These forms may be found at various websites, and may also be available in publications at your local library.

California Financial Power of Attorney Form. The financial POA form is titled “Uniform Statutory Form Power of Attorney" (from Section 4401 of the Probate Code).

This form becomes effective immediately, unless you add the sentence “This power of attorney shall become effective upon the incapacity of the principal" under the SPECIAL INSTRUCTIONS section on the form. It is also automatically a durable power of attorney, unless you cross out the sentence “This power of attorney will continue in effect even though I become incapacitated" just below the SPECIAL INSTRUCTIONS.

California Health Care Power of Attorney Form. The health care POA form is Part 1 of the form titled “Advance Health Care Directive" (from Section 4701 of the Probate Code).

The other parts of this form include a living will, provisions for organ donation, and a designation of your primary physician. If you are a patient in a skilled nursing facility, this form must also be witnessed by a legally designated patient advocate or ombudsman.