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What is a California Power of Attorney?

A California power of attorney is a legal form that serves as the authorization for an individual, also known as an agent or attorney-in-fact, to make financial, healthcare, real estate, or estate decisions on behalf of the person granting permission. A California POA is often used for estate planning. However, there are other instances where a POA would be considered useful.

Quick Reference:

The person granting permission is known as the principal, donor, or grantor.

The person receiving authorization is known as the agent or the attorney-in-fact.

CA POA Laws:

A California power of attorney implies that the power of attorney form complies with the requirements of California law and is legally enforceable. According to the law in the State of California, power of attorney forms must be in compliance with §4121 of the California Probate Code, which states that:

  • The power of attorney form contains the date of execution.
  • The power of attorney has been signed by the principal or in the principal's name by a capable adult in the presence of the principal.
  • The power of attorney is signed before a notary public or at least two witnesses who are in compliance with §4122.

Regardless, probate code section 4122 requires the principal to be of sound mind since they are signing an important legal document that, depending on the type of POA they are executing, allows the agent to make certain decisions on their behalf.

Witnesses in compliance with §4122 must be:

  • Legal adults.
  • The attorney-in-fact may not be a signing witness.
  • The signing witnesses must witness the signing of the document by the principal or the principal’s acknowledgment of the signature or the power of attorney.

Why Would You Use a California Power of Attorney Form?

There are many reasons why someone would use a California power of attorney form to give authorization over their tangible personal property transactions, financial institution transactions, tax matters, or their well-being to a close friend or family member.

  • Age, mental health challenges, and illness are common reasons why someone would want their affairs handled in specific ways, should anything unfortunate happen to them. As no one knows what will happen tomorrow, it’s advised that everyone from the terminally ill to the perfectly healthy establish the right powers of attorney so their wishes are fulfilled, and their affairs are properly handled.
  • Granted, a person with a mental illness may require different power of attorney needs than a person with a terminal illness.
  • Similarly, a person with dependent children will have different power of attorney needs than a single person with no children.

Each person’s power of attorney needs vary. Thankfully, there are many types of power of attorney documents. Before you decide to get a power of attorney, you should get legal advice. Ask about the best POA for your needs and how you would revoke the POA if necessary. Here are a few of the most common:

Durable

According to The Superior Court of California for Santa Clara County, a durable power of attorney is used to allow an agent to act on the behalf of the grantor in specified situations.

Special

A special power of attorney grants limited authority to the agent, granting him or her specific powers to make decisions on the grantor's behalf. However this would only take place only in certain situations. These situations must be clearly stated in the California power of attorney form for it to take effect.

  • For example, the agent may be granted access to the principal’s bank accounts to pay bills and expenses or handle other specific financial matters. However, the agent may not have the legal authority to sell any real property, such as cars, real estate, or personal belongings. If the principal passes away, the power of attorney would no longer be valid.

Limited

A limited power of attorney is similar to a special power of attorney. In many instances are considered the same thing. Much like a special power of attorney, a limited power of attorney has limited power to whatever the grantor specifies.

  • In many cases, an agent will have power to handle financial decisions, handle retirement plan transactions (such as make option transactions) on your behalf, or make medical decisions, but will not have authority to do other things such as sell property (depending on what the grantor decides). Just like a special power of attorney, the authority diminishes if the grantor dies.

Medical

A medical power of attorney, more commonly known as a health care power of attorney (HCPOA) or a power of attorney for health care, grants power to the agent to make medical or health decisions on the grantor’s behalf.

  • This is commonly used by individuals who are terminally ill, elderly, or for those who may work a high-risk job such as a police officer, or a logger. It is not the same thing as a health care directive. The Attorney General provides an advance health care directive for anyone who needs one.

Parental

A parental power of attorney allows a parent to grant decision-making rights over their child to a temporary guardian in the case that the parent may not be present during a medical emergency.

  • This form is generally used if the parent must leave the country for a period of time, or if the child is traveling abroad with a responsible adult.

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