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A Power of Attorney is a legal document that you (as the "principal") create. It gives another person (your agent, or "attorney-in-fact") the legal authority to act on your behalf. You can give your agent broad, ongoing powers, such as handling all of your finances, or limit him/her to specific actions and dates, for example selling your car while you are away. Your agent may not represent you in court, nor may he or she write, change, or revoke your will.
Probate Code sections 4000 through 4545 contain California's Power of Attorney Law, and outline the responsibilities of both the principal and the agent.
Common types of Power of Attorney include:
- General Financial Power of Attorney: permits the agent to transact business other than health care for the principal.
- Durable Financial Power of Attorney: remains active even if the principal becomes incapacitated. Clear and specific wording to that affect is what establishes a durable power of attorney. Most commercially published forms these days are durable.
- Health Care Power of Attorney: referred to as a Durable Power of Attorney for Health Care. In California this is combined with a living will to create an Advance Health Care Directive, governed by Probate Code 4600 through 4806. (See also the library's "Living Wills" resource guide.)
- Limited (or Special) Power of Attorney: used for child care, for example, allowing the agent to make decisions in place of the parents about school or health care for the children. Incarcerated persons may need one or more PoAs for this and other specific tasks of limited duration.
- Military Power of Attorney: Federal law makes special provisions for the drafting of powers of attorney for Military personnel, so they should contact their Armed Services Legal Assistance Office.
- Financial Institution Power of Attorney: some banks and other financial institutions (such as CalPERS and the IRS) require that you use their own forms.
How long does the Power of Attorney last? You can specify an expiration date in the document. A general power of attorney ends if you become incapacitated or revise the document to make it durable. Otherwise, a Power of Attorney ends either when you die, or:
- You revoke it. As long as you are mentally competent, you can revoke a power of attorney at any time. Make sure to send a copy of the revocation to banks or businesses etc. that have done business with your Agent, to notify them that the power has expired.
- You get a divorce. In California if your spouse is your agent and you divorce, his/her authority automatically terminates. If you remarry the same person, though, the powers are re-instated.
- Your agent becomes incapacitated or unavailable. To avoid this problem, you can name an alternate agent in your document.
A new PoA does not necessarily void the older one. You can have more than one power of attorney if each is for clearly different purposes. But if you have only one, and you replace it, include in this new document a clause revoking the previous one.
Should you become incapacitated, having a durable power of attorney in place will help to prevent complicated guardianship or conservatorship proceedings. Because PoAs end when you die, if you want your agent to continue to wind up your affairs after your death, you must make him/her your executor.
Make sure the Power of Attorney is valid. Get the document acknowledged by a notary public or have it signed by at least two adult witnesses. (Your agent cannot be a witness.) Sign as many originals as you will need; photocopies are often not accepted by banks, etc.
Where do I file the Power of Attorney? Powers of Attorney are not filed with the court. The only time you file a Power of Attorney with a government agency is when it is used in a real estate transaction. In that case, file an original with the County Clerk Recorder.
Where can I get the forms? You can purchase Power of Attorney 'kits' at stationery or office supply stores. There are books to buy (or to check out from your public library) that supply forms in context and as appendices. However, California law contains model "legally sufficient" language for a Power of Attorney and for an Advance Health Care Directive right in the text of the Probate Code; for your no-cost convenience, the law library's website has templates of these forms on the Forms, Motions, and Pleadings page. Complete the forms online or print them out for filling in later.
If you have questions or concerns about what the language does or does not include in these or any other legal forms you find on the Internet, visit the law library to do some reading about how your particular circumstances might require modifications to the general drafting language. Or, consult an attorney.
Visit the website Nolo Press to find detailed and reliable information about Powers of Attorney.
Mareth Wilson, Public Services Librarian
Links for "Power of Attorney"
California Probate Code 4600 through 4806.
Power of Attorney for Military personnel
Armed Services Legal Assistance Office
Sacramento County Public Law Library's Forms, Motions, and Pleadings includes free Power of Attorney and Advance Health Care Directive forms
Nolo Press informaton on Powers of Attorney