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A guide to choosing the correct type and filing your documents
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A Power of Attorney is a legal document whereby a person gives another person or people written authority to make decisions on their behalf with regard to their financial affairs, their health and personal welfare, or some other legal matter. A power of attorney is useful if you have a physical illness or injury, or you want someone to make decisions for you in the event that you become incapacitated. You can also use a power of attorney document if you plan to go abroad and you want someone else to look after your affairs in your absence. To get power of attorney in California, you'll need to choose the right type of power of attorney and fill out the appropriate form.
Steps
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Discuss a power of attorney with those close to you. Before you execute a power of attorney, talk with those close to you about your reasons for wanting to do so. It may be that you have a physical illness or injury, or that you want to think ahead in case you ever become incapacitated. Your reason may be as simple as wanting someone to look after your affairs while you are gone on an extended trip. Having a discussion with your loved ones can also jump-start the decision making process. Your loved ones may have suggestions as to the type of power of attorney you may need and the people that should be involved.
- if you are seeking to be an "agent," the person receiving authority from the "principal," the person giving their authority to the agent, talk to the principal regarding your motives and intentions. [1] X Research source
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Choose between a power of attorney and seeking conservatorship. In order to enter into a valid power of attorney agreement, the principal must be of sound body and mind (i.e., they cannot be incapacitated). [2] X Research source If the potential principal is already incapacitated, you are past the point of being able to create a power of attorney.
- In this situation, you will need to seek conservatorship over the incapacitated individual.
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Seek conservatorship if necessary. In order to set up a conservatorship, you must complete a petition and file it with the appropriate court in California. [3] X Research source Someone must then provide notice to the proposed "conservatee," the person currently incapacitated, and their relatives. [4] X Research source A court investigator will look into your claim and report back to the court regarding their findings. [5] X Research source Finally, you will attend a court hearing, along with the proposed conservatee, and a judge will determine whether to grant or deny your petition for conservatorship. [6] X Research source
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Decide if you want a durable power of attorney. Once you determine that a power of attorney is right for you, you will need to decide what type of power of attorney to create. In California, the first type of power of attorney is a durable power of attorney. A durable power of attorney allows you to act on behalf of another person for all day-to-day financial decision making. This is the most flexible and permissive form of a power of attorney.
- A durable power of attorney survives even if the principal becomes incapacitated. In California, in order to create a durable power of attorney, you must include the following language:
- "This Power of Attorney shall not be affected by subsequent incapacity of the principal"; or
- "This Power of Attorney shall become effective upon the incapacity of the principal"; or
- Any other language that shows you want the power of attorney to remain in effect even if the principal becomes incapacitated.
- A durable power of attorney can become effective whenever the principal so chooses. You can make it go into effect immediately or you can choose a time to make the power of attorney effective.
- A durable power of attorney terminates upon the death of the principal, or when the principal cancels it. Under California law, unless a durable power of attorney is explicitly revoked or has specific termination language, it remains valid until the death of the principal.
- A durable power of attorney survives even if the principal becomes incapacitated. In California, in order to create a durable power of attorney, you must include the following language:
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Decide if you want a general power of attorney. A general power of attorney grants all of the rights and responsibilities of a durable power of attorney, except it is rendered void if the principal becomes incapacitated. [7] X Research source
- A general power of attorney can become effective whenever the principal so chooses. You can make it go into effect immediately or you can choose a time to make the power of attorney effective.
- A general power of attorney can be terminated at any time, which might include a specific date, after the completion of a specific task, or whenever the principal chooses to cancel the agreement.
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Determine if you want a limited power of attorney. A limited power of attorney is a special type of general power of attorney. In it, the principal authorizes you to perform a specific activity on their behalf. For example, the principal may authorize you to sell property or execute bank transactions.
- When the authorized activity is complete, or on a certain date, the power of attorney expires and becomes void.
- A specific type of limited power of attorney is used by the California State Franchise Tax Board to allow your tax preparer to talk with the state on your behalf. [8] X Research source
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Decide if you want a power of attorney for health care. This type of power of attorney gives you the authority to make medical decisions for the principal. This authority can include refusing potentially life-extending treatments and to discontinue life support.
- The American Bar Association has a multi-state form package that includes instructions for California.
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Choose someone you trust. When you appoint an agent, that person will have the ability to make various financial and medical decisions on your (the principal's) behalf. Because an agent has so much power, you want to be sure to choose someone you trust with your health and well-being. In addition, choose someone that understands your financial situation, as well as your medical concerns.
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Consider age, health, and location of potential agents. Remember that whoever you choose to appoint as your agent will be making important decisions, for potentially a long period of time, regarding your life. Consider someone's age, health, and location prior to making a decision.
- For example, if the agent does not live near you, it may be difficult for that person to have the required relationship with your banks or your doctors.
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Consider the agent's religion and lifestyle preferences. Make sure you choose someone with the same or similar beliefs as you. The goal in choosing an agent is to have that person make decisions for you in the same or similar manner as you would make them for yourself. Therefore, choose an agent who shares your medical and financial beliefs.
- For example, some people may not believe in keeping an individual on life support for an extended period of time (for religious or personal reasons), while others may believe in doing so. Whatever your beliefs, choose someone that thinks similarly to you.
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Download an appropriate power of attorney form. California makes it easy to access and create a power of attorney document. The California Probate Code offers a form that complies with California law. In addition, the California Office of the Attorney General website provides a standard power of attorney for health care form. [9] X Research source Between these two forms, you should be able to create a valid power of attorney that addresses the concerns you have.
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Name the parties. When filling out either form, the first step will be two identify each party to the power of attorney. First, you will include the principal's name, address, and contact information. Next, you will need to include the name of the agent or agents that were chosen.
- If you designate more than one person to act as an agent, you will need to designate the way in which decisions will be made. If you want each agent to be able to act on their own, simply state that the agents can act separately. If you want all of your agents to act together, state that the agents must act jointly.
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Choose the powers you want the agent to have. Each form will have a section for you to check off powers you want the agent to have, and each form will provide space for you to write out clear directives.
- Using the California Probate Code form, you can grant powers by simply initialing next to the powers already laid out. In order to withhold powers, simply avoid initialing next to that power. The subjects included in the form are: real property transactions; tangible personal property transactions; stock and bond transactions; commodity and option transactions; banking and other financial institution transactions; business operating transactions; insurance and annuity transactions; estate, trust, and other beneficiary transactions; claims and litigation; personal and family maintenance; benefits from social security, medicare, medicaid, or other governmental programs, or civil or military service; retirement plan transactions; and tax matters.
- In the health care form, the agent will be authorized to make all health care decisions unless exceptions are explicitly provided.
- With the different types of powers of attorney in mind, you need to determine exactly what needs to be accomplished. Durable powers of attorney are often appropriate for long-term care of someone experiencing serious medical issues who is in danger of becoming incapacitated. Durable powers of attorney are also often granted to trust administrators and conservators so the trustee can manage the estate without having to seek signatures on every document.
- For most other situations, a general or limited power of attorney will suffice. Even if the power of attorney will be valid for a long period, such as a period of incarceration or until a child turns 18, you should only take or delegate as much authority as necessary.
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Note powers that cannot or will not be conferred. The final part of a power of attorney should include specific powers you do not wish to confer. You want to include these exclusions in order to make clear the limits of the agent's powers.
- For example, if you do not wish to allow the agent to make real property decisions, including the purchase and sale of real property, explicitly state this in your power of attorney.
- Also, there are some issues that cannot be legally included in a power of attorney. For example, in California, an agent cannot make or change the principal's will.
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Make sure the date of execution is somewhere in the document. Under California law, a valid power of attorney must contain the date of execution.
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Direct the principal to sign the power of attorney. The power of attorney can be signed by the principal or by someone else acting on behalf of the principal, in the principal's presence, and in the principal's name.
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Sign the document in front of a notary or have the document signed by two witnesses. In California, a power of attorney must either be acknowledged in front of a notary or signed by two witnesses.
- While either method of validation will work, consider doing both. By signing in front of a notary, you expel any doubt as to the validity of the principal's signature. Also, by having two witnesses sign the power of attorney, you are also creating parties who can testify as to the validity of the document.
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Maintain separate accounts and records. The agent must not co-mingle his personal funds and property with those of the principal. Keep separate bank accounts and meticulous records.
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Avoid conflicts of interest. If it becomes necessary to transfer real estate or other valuable property from the principal to the agent, consult an attorney to make sure the transfer is authorized either by the principal or the power of attorney.
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Terminate the power of attorney. The agent can withdraw from the power of attorney at any time by submitting written notice and an accounting of all property in his possession. If there is an alternate agent, authority will transfer immediately. If there is not alternate agent, the principal will need to execute a new power of attorney.
- The principal can terminate the power of attorney at any time either in writing or by executing a new power of attorney with a different agent. California state law explicitly states that, "If a principal grants inconsistent authority to one or more attorneys-in-fact in two or more powers of attorney, the authority granted last controls to the extent of the inconsistency."
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References
- ↑ https://www.law.cornell.edu/wex/power_of_attorney
- ↑ http://www.nolo.com/legal-encyclopedia/question-make-power-of-attorney-mother-28261.html
- ↑ http://www.courts.ca.gov/selfhelp-conservatorship.htm
- ↑ http://www.courts.ca.gov/selfhelp-conservatorship.htm
- ↑ http://www.courts.ca.gov/selfhelp-conservatorship.htm
- ↑ http://www.courts.ca.gov/selfhelp-conservatorship.htm
- ↑ http://powerofattorney.com/california/general-power-attorney-california-form-adobe-pdf/
- ↑ https://www.ftb.ca.gov/law/poa/index.shtml?WT.mc_id=Business_Sidebar_Help_POA
- ↑ http://oag.ca.gov/sites/all/files/agweb/pdfs/consumers/ProbateCodeAdvancedHealthCareDirectiveForm-fillable.pdf
About This Article
Article Summary
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To get power of attorney in California, you'll need to download the appropriate form online and fill it out, including the name of both parties and which powers you want the agent to have. Have the principal sign the power of attorney, then sign the document yourself in front of a notary or have it signed by two witnesses. There are four types of power of attorney in California, including a durable power of attorney, a general power of attorney, a limited power of attorney, and a power of attorney for health care. For advice on which power of attorney is right for your situation, keep reading.
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