Power of Attorney: California Requirements, Types, and Uses

A power of attorney (POA) is a legal document that allows you (the principal) to delegate important decisions to someone you trust (your attorney-in-fact or agent) in moments when you're unavailable to handle those situations personally. You dictate the terms of the contract and have the right to invalidate it at any time.

The legal power you give in a POA can be limited or broad and include decisions about medical, legal, or financial matters—based on the terms of your contract and the type of POA. Individual states set their own rules governing POA arrangements, which means that powers of attorney rules vary nationwide. You can find California power of attorney requirements—and the powers assigned to agents—in the California Probate Code.

What is a power of attorney?

Power of attorney doesn't take away your personal authority to make decisions. Instead, it gives someone of your choosing the legal authority to also act on your behalf. Having power of attorney is helpful if you find yourself in a situation where you're unable to make decisions on your behalf or would prefer to have someone else act for you. If you are suddenly incapacitated in a car accident, for instance, then your attorney-in-fact can step in to handle your legal, medical, or financial affairs.

Depending on how you've worded your power of attorney form, an agent's authority may allow them to do any of the following on your behalf:

• Speak with financial institutions and access your bank accounts.
• Conduct real estate transactions in your name.
• Discuss business matters with your partners or business co-owners.
• Make healthcare decisions, including which types of medical treatment to authorize or withhold.
• Sign contracts for financial or business transactions.

You can choose one person to act as your agent in all of these situations or have more than one agent depending on state laws. California power of attorney rules allow you to name multiple agents or attorneys-in-fact, which you may prefer if you'd like to have different people oversee financial decisions, medical decisions, or business affairs for you.

When do you need a power of attorney in California?

California power of attorney laws offer protection in a variety of situations. In terms of specific scenarios where a California power of attorney is useful, here are a few examples:

• You get involved in a serious car accident that leaves you in a coma for two months. It's left to your agent to manage your rent and utility payments until you regain consciousness.
• Your parents are getting older, and you're worried about them becoming targets of elder abuse, including financial scams. You suggest that they give you an agent's authority to help them handle their financial affairs should their mental capacity begin to decline.
• You own a successful business and enter into an agreement to acquire another, smaller business. You're unable to be present the day the deal closes so you authorize your power of attorney to sign the contract for you.

In any of these situations, power of attorney lets you (or whoever the principal is) maintain a measure of control even when it's not possible to act directly.

California POA requirements

California power of attorney requirements are fairly straightforward. Here are all the boxes you'll need to check off to create a valid California power of attorney.

Eligibility

You're eligible to create a POA if you fulfill the following requirements:

• You're at least 18 years old.
• You have the mental capacity to establish a POA, meaning you grasp what it is and the implications of setting one up.
• Your agent is also 18 years old or older and has the mental capacity to establish a POA.
• Your power of attorney document is signed in front of a notary public or by two competent witnesses (not including your agent).

Signing requirements

California law requires you to sign your POA in front of a notary public or two witnesses. The agent of your POA cannot be one of the witnesses. Additionally, the witnesses cannot be related to you by blood, marriage, or adoption. If you're setting up a power of attorney for real estate transactions, you'll need to get your POA notarized.

For healthcare power of attorneys, the witness cannot be your healthcare provider, an employee of your healthcare provider, run a community care facility, work for a community care facility, run a residential nursing home, or work for a residential nursing home.

If you or your loved one is creating a POA while residing in a nursing home, an ombudsman or patient advocate must act as one of the two witnesses or sign in addition to the notary public.

Durable clause and time requirements

In California, a financial POA is only legally valid if it contains the date that it'll go into effect. That said, a medical POA is only effective once the principal is incapacitated, and becomes ineffective once the principal has recovered capacity unless stated otherwise in the POA.

To be a durable power of attorney—meaning it remains in effect even in the event that the principal is incapacitated—it must contain the phrase, "This power of attorney shall not be affected by subsequent incapacity of the principal,” "This power of attorney shall become effective upon the incapacity of the principal," or some other similar statement that outlines your intention for the POA to remain effective following incapacity.

Types of powers of attorney in California

There's more than one option for establishing power of attorney in California. The one you choose can depend on your needs and situation. Here's a closer look at the different possibilities for California power of attorney.

General power of attorney 

A general power of attorney in California is the most comprehensive option since your agent's authority can extend to both financial and business affairs. General power of attorney is also flexible, as you can rescind it at any time or name a new attorney-in-fact.

Limited power of attorney

When a general power of attorney document can grant broad powers to an agent, a limited power of attorney only authorizes them to act in specific situations. For example, if you and your spouse are buying a home together and your spouse is deployed in another country and can't make it to the closing, you might be granted limited power of attorney to sign the contract in their place. Once the signing is done, your authority as an agent ends.

Healthcare or medical power of attorney 

A medical POA gives your agent the authority to make healthcare decisions for you. This document, also called an advance healthcare directive, limits your agent to making health decisions only when you're incapacitated unless you specify otherwise. You might set up a medical POA if you're worried about being involved in an accident, you have to undergo surgery, or if you're diagnosed with a terminal illness. Note that healthcare POA’s are often part of a “living will.” The living will sets forth your end-of-life wishes, and the healthcare POA sets forth the name(s) of the persons in charge of carrying out those wishes.

Durable power of attorney in California

In addition to defining different types of power of attorney, California law allows principals to decide when a POA takes effect. Power of attorney authorization can be durable and non-durable and immediate or springing.

Here's a simple durable power of attorney definition. It means that the POA remains in effect even when they are incapacitated. You might consider setting up a durable POA to allow your agent to manage financial affairs or business matters if you're worried about not being able to do so yourself.

A non-durable POA, on the other hand, only conveys power for a limited time period to the person acting as your agent. Once you become incapacitated, an agent's authority to make financial decisions or business decisions for you ends. That could leave your loved ones in the position of having to obtain a guardianship or conservatorship if you're unable to make your own decisions.
Springing powers of attorney, grants your agent authority to act only when you become incapacitated. They can continue after you’re incapacity if they are durable, or end upon incapacity if they are non-durable.

Immediate powers of attorney become effective as soon as you sign them.
Understanding the different ways to structure power of attorney can help you decide whether it makes sense to choose a durable or nondurable and immediate or springing POA options.

Power of attorney in real estate transactions

Real estate transactions can be some of the most complicated financial affairs to manage since there are often many legal hurdles to jump through. In California, your agent can typically act for you to do the following:

• Buy or sell property or land
• Collect rent from investment properties you own
• Hire contractors or subcontractors to repair or maintain primary homes or investment properties
• Communicate with your mortgage lender, including sending payments
• Obtain information about your property from the land records office
• Represent you in matters related to property tax hearings or filings

Having power of attorney for real estate transactions is helpful in situations where you can't be present to sign documents or authorize payments. As mentioned, it may also be helpful for older people to have someone to act as a financial POA on their behalf to protect their property or other assets against elder abuse. An estate-planning attorney can work with you to draft a strong POA that aligns with California regulations for these purposes.

Attorney in fact vs. agent in California

Under California POA rules, an attorney-in-fact and an agent are essentially the same things. They're two different terms used to describe a power of attorney. When naming an attorney-in-fact or agent, it's important to choose someone that you can rely on to carry out your wishes and act in your best interests.

For example, if you want to set up an advance health care directive that includes your wishes not to receive life support under any circumstances, you may want to make that clear to the person you plan to name as your medical POA beforehand. Specifically, they need to understand that they cannot override your wishes if they disagree with them.

Likewise, if someone else chooses to name you as their agent under California power of attorney rules, you need to know what you are and are not authorized to do. Before you agree to become someone's power of attorney, it's a good idea to have a discussion with them about what they expect and when you might be called on to act for them.

How to get a power of attorney in California

In California, you must use a specific power of attorney form as dictated by the state code. The California Probate Code houses forms, definitions, and requirement guidelines for both broad or "uniform" power of attorney and a healthcare power of attorney.

Step 1: Download the appropriate form

Before you determine what form you need, ask yourself what authority you want to give your agent. You can find financial POAs in California Probate Code Section 4401, called a Uniform Statutory Form Power of Attorney. The Uniform Statutory Form Power of Attorney is a general form that you can customize to create general or limited POAs.

A durable power of attorney is essentially the same form as a Uniform Statutory form, with special emphasis on the fact that your POA will remain effective even if you're incapacitated.

The California healthcare POA is in Section 4701 of the Probate Code and is called an advance healthcare directive. This type of POA goes into effect only after you're incapacitated—unless otherwise specified—and allows you to specify how you want healthcare providers to handle certain decisions related to your health and medical treatment.

Step 2: Choose an agent you trust

A POA gives your agent the power to manage, sell, dispose of, and leverage your real and personal property on your behalf. It's vital that the person you choose to carry out this very important role is someone you trust and believe is capable of making these decisions in your best interest.

Step 3: Consult with an attorney to customize your form

Read through your Powers of Attorney with a lawyer to ensure you understand what you're signing before you put anything into effect. You can also work with an attorney or an online service to create and execute your POA. Getting legal help is a good idea if you're unsure about which form to use.

Both the Uniform Statutory POA and the advance healthcare directive are general forms with language that legally satisfies California powers of authority requirements. However, you can incorporate this language into your own form or otherwise tailor the form to meet your specific needs with the help of a legal professional.

Step 4: Get all required signatures

Once you've chosen the appropriate form and customized it with your lawyer, you will sign it in the presence of a notary or two witnesses. The witnesses or notary also need to sign the document to attest to your acknowledgment of the contents of the contract.

Step 5: Submit your form

Submit your POA with any relevant institutions, such as your banks, stockbrokers, and tax institutions. If your POA covers real estate, then you may need to file with the local government office of the property mentioned in your POA.

For taxes, you can submit a POA with the State of California Franchise Tax Board online by creating a MyFTB accountand selecting "File a Power of Attorney." After you submit your POA, it generally takes 3 weeks to review and process the document. Once accepted, they'll send a letter stating if they've approved or denied the POA.

FAQs

Can a power of attorney be changed or revoked in CA?

Yes, you can change or revoke your POA in writing at any time by giving a statement or new power of attorney to any institutions that hold your current power of attorney.

Does a California power of attorney expire?

Technically yes, you can decide when you want your POA to expire. If you don't state otherwise in your POA, it will remain effective until you cancel it or when you pass away. 

Can multiple agents be appointed?

Yes, you can appoint multiple agents as your attorney-in-fact in a California POA or even appoint successive agents in an advance health care directive in the event that your agent is unable to fulfill the duties you assigned them.

How do I revoke a POA in California?

You can revoke a POA in California by informing your attorney-in-fact that you're revoking it, either in a written statement or orally, but be sure to look at the specific rules for revocation or talk to an attorney. 
 

Rebecca Lake contributed to this article.