A power of attorney (POA) is a legal document that allows one person (the principal) to designate another person (the agent or attorney-in-fact) to make legal, medical, and/or financial decisions on their behalf if they become incapacitated or unable to make those decisions themselves. Having a POA in place can help ensure your wishes are carried out even if you become sick or injured. This article will provide an overview of the requirements for creating a valid POA in California.
What is a power of attorney?
A power of attorney is a legal document in which the principal (the person granting the authority) designates an agent to act on their behalf. The agent can be authorized to make legal, financial, and medical decisions according to the principal’s wishes. A POA can grant the agent broad or limited powers.
Some key facts about POAs:
– The principal must be competent and of sound mind when creating the POA. It cannot be made by someone who is incapacitated.
– The POA only remains valid while the principal is alive. It is automatically revoked upon the principal’s death.
– The principal can revoke the POA at any time as long as they have capacity.
– The agent has a fiduciary duty to the principal and must act in their best interest. They cannot make self-serving decisions.
– There are two main types of POAs – a durable POA and a springing POA. Durable POAs remain in effect if the principal loses capacity. Springing POAs only become effective if the principal becomes incapacitated.
Requirements for a valid POA in California
For a power of attorney document to be legally valid in California, the following requirements must be met:
Competency of the principal
The principal must be of sound mind and have full mental capacity when creating the POA. It cannot be made by someone who is incapacitated by illness or injury. There is a rebuttable presumption that the principal was of sound mind if the POA was executed according to California probate law requirements.
Signature of principal and witnesses
The principal must date and sign the POA document or direct another person to sign it in their presence. California law requires the signature be witnessed by two adults who are present when the principal signs the document. The witnesses do not need to read the POA, but they must watch the principal sign it and acknowledge that to be their signature.
Notarization
A California POA must be notarized to be valid. This requires the notary public to screen the principal and witnesses to confirm their identities and willingness to sign. The notary watches the principal sign the document and then notarizes it by signing their name and affixing their notary seal.
Acceptance by agent
The agent does not need to sign the POA document in California, but they must accept the role before they can act. Acceptance can be demonstrated through words, conduct, or taking action authorized by the POA. It is recommended that the agent sign an acceptance to provide written evidence they have accepted the responsibilities.
Reasonable knowledge for third parties
Third parties, like doctors or banks, who deal with an agent acting under a POA must be given “reasonable knowledge” that the POA exists. This is often done by providing a copy of the document. They can also contact the principal to confirm its validity.
Recording the POA
While not required, it is highly recommended to record the executed POA with the county recorder’s office. This provides public notice and easier access for third parties to verify the agent’s authority.
Types of POA
There are several types of POA under California law:
General POA
This provides the broadest authority for an agent to act on the principal’s behalf regarding any lawful subject matter. It can grant authority over financial, legal, medical, and business matters. It is the most comprehensive but also the riskiest type of POA and is often used for convenience or when extensive authority needs to be granted.
Special or Limited POA
This is used to give an agent authority over one specific act or type of act, like selling a home or managing a business. The agent can only take action relevant to the special circumstance described in the document. This is less risky than a general POA.
Durable POA
A durable POA remains effective even if the principal becomes incapacitated or disabled. All powers granted continue without being affected by any disability. Most POAs created are durable to ensure the agent can keep acting if the principal cannot make decisions.
Springing POA
This becomes effective only when the trigger event stated in the document occurs, such as the principal’s incapacity. It lays dormant until the predetermined condition is met that activates the agent’s powers. Proof of incapacity may be required.
Medical POA
This allows the agent to make healthcare decisions on the principal’s behalf if they are unable to do so themselves. The agent can access medical records, authorize treatment, and more based on the principal’s wishes. It is often combined with a living will for end-of-life decisions.
Creating a valid POA in California
Follow these key steps to create a legally valid POA in California:
1. Determine the powers to delegate
Decide what authority you want to give your agent – make it as broad or limited as you desire. Specify exactly what powers are granted. Popular options are:
– Financial (manage bank accounts, pay bills, file taxes, etc)
– Legal (sign contracts, sue on your behalf, manage real estate)
– Medical (make healthcare decisions, access medical records)
– Business (operate a business, sign business contracts)
2. Choose your agent
Pick someone you trust completely who will act responsibly and in your best interests. Be sure they understand your wishes and are willing to serve as your agent. Name one or more successor agents in case your first choice cannot serve.
3. Use proper POA forms
California has its own legally valid POA forms that include all required provisions. You can find and download the forms for free online or work with an attorney to customize or draft a more specialized POA document.
4. Name the principal and agent
The principal and agent(s) must be clearly identified with full legal names and contact information. Be sure names and details match the supporting identity documents.
5. Describe powers and terms
Define the powers you are granting your agent and any limits, conditions, restrictions, or expiration dates that apply. Be as explicit as possible about which powers are authorized.
6. Sign with witnesses present
You must sign the POA in front of two adult witnesses, who also sign to affirm they witnessed you signing the document while you were of sound mind.
7. Notarize the signed POA
Take the signed POA to a notary public to have it notarized. The notary will verify identities and watch signing before notarizing the document.
8. Accept appointment as agent
The named agent should review the POA and formally accept the appointment in writing. This documents their consent to serve as agent.
9. Record the POA (optional)
Recording the POA with the county provides additional validation and easier access for third parties. This is recommended for most POAs but is not required in California.
10. Provide copies
Give signed and notarized copies of the POA to all relevant third parties like your bank, doctor, etc. so they know your agent has authority to act.
Revoking a POA
As long as the principal still has capacity, they can revoke a POA at any time by:
– Destroying all copies of the POA documents
– Writing and signing a revocation statement
– Creating a new POA that contradicts the old one
– Verbally informing the agent and third parties
The revocation is effective as soon as notice is provided. All powers granted to the agent are terminated. A principal can also name a new agent to replace a current agent.
Conclusion
Drafting a valid POA that aligns with your wishes takes careful consideration. Following California’s legal requirements ensures your document will be legitimate and enforceable. Proper execution with witnesses and notarization gives it the greatest legal weight. Discuss your situation with an attorney if you have questions about creating or revoking a POA. With a carefully crafted POA, you can protect yourself and feel confident your medical, financial, and legal affairs will be managed as you intend.
Questions and Answers
Here are some common questions and answers about power of attorney requirements in California:
What are the requirements to make a power of attorney legal in California?
To make a power of attorney legal and valid under California law, the principal must be competent and sign the document in the presence of two adult witnesses and a notary public. The notary must then notarize the document.
Does a power of attorney need to be notarized in California?
Yes, California requires a power of attorney document to be notarized to be legally valid. The notary watches the principal sign the POA and verifies their identity and willingness.
Can someone notarize their own power of attorney in California?
No, it is not permissible for a notary public in California to notarize their own POA document. Another disinterested third party notary must oversee the signing and notarization.
Is there a required form for a power of attorney in California?
No, there is no one required form. However, California has created its own statutory forms that contain all the required elements. These forms can provide helpful guidance in drafting a POA.
Can a photocopy of a power of attorney be used in California?
Yes, as long as the photocopy is a complete, accurate, and legible representation of the original POA, third parties can rely on and accept a photocopy as valid in California.
Does a power of attorney expire in California?
A POA expires either when the principal dies or if they include an expiration date or termination event in the document’s terms. Otherwise, the POA does not expire and can only be terminated if revoked by a competent principal.
Can you revoke a power of attorney without telling the agent in California?
The principal can revoke a POA without directly informing the agent. However, they must still provide notice to any third parties likely to be presented with the now-invalid POA. Constructive notice that makes the revocation reasonably likely to come to the agent’s attention can be sufficient.
Is a power of attorney valid if the principal becomes incapacitated in California?
It depends on the type of POA. Most POAs created in California are “durable” and remain in effect even if the principal is incapacitated. Non-durable POAs are revoked by incapacity. Springing POAs only become active upon incapacity.
Can a power of attorney transfer property ownership in California?
Yes, the principal can authorize the agent to transfer the principal’s property ownership interests through the POA as long as this power is expressly stated in the document. General POAs usually convey broad authority that includes real estate transfers.
Table Comparing Requirements for POA in California vs. Other States
| Requirement | California | Texas | New York |
|---|---|---|---|
| Principal’s legal capacity | Must have full capacity when signing | Must have full capacity when signing | Must have full capacity when signing |
| Signature of principal | Must sign POA personally | Must sign POA personally | Must sign POA personally |
| Witnesses required | 2 adult witnesses | No witnesses required | 2 adult witnesses |
| Notarization | Required | Not required but recommended | Required for real estate POA |
| Recording | Optional | Optional | Optional |
| Springing POA allowed | Yes | Yes | Yes |
| Expiration | No expiration unless stated | 6 months if no expiration specified | No expiration unless stated |
Specific Authority Required for Certain Powers in California POA
In California, these powers must be expressly stated and authorized in a POA document or they cannot be exercised by the agent:
- Create, amend, or revoke a trust document
- Make a gift or transfer assets without receiving equivalent value in return
- Create or change rights of survivorship
- Delegate authority granted under the power of attorney
- Waive the principal’s right to be a beneficiary of a joint and survivor annuity
- Exercise fiduciary powers that the principal has authority to delegate
- Disclaim property
General grants of authority in a POA are not enough to confer these specific powers. The principal must individually authorize each one that they wish to delegate to their agent.
Requirements for Real Estate Transactions Under POA
For an agent to conduct real estate transactions under a California POA, these rules apply:
– The POA document must expressly authorize real property transactions. General authority is not sufficient.
– The authority must state whether it applies to all of the principal’s real property or specify which property is included.
– The POA must be notarized before or at the same time as the deed transfer.
– The agent must sign as “___, as agent for [principal]” to execute deeds or related documents.
– The property’s legal description must be included in the POA or deed.
– The POA must be recorded in the same county as the real estate prior to the transfer.
– If the agent’s authority lapses after execution, recordation validates the deed.
– The agent’s authority is still limited by the terms and limits provided in the POA by the principal.
Conclusion
Granting someone power of attorney is an important decision that comes with many legal requirements under California law. Following the proper steps outlined above ensures your POA is legally enforceable. Consult an estate planning attorney if you need guidance to create a customized document that properly expresses your wishes and protects your interests. With a valid POA in place, you can have peace of mind knowing your affairs will be handled as you want if you ever become unable to manage them yourself.
