Assigning a Power of Attorney in California - Werner Law Firm
Do You Need a Lawyer to Get a Power of Attorney in California? - Werner Law Firm

Do You Need a Lawyer to Get a Power of Attorney in California?

You do not need a lawyer to get or create a power of attorney in California. A power of attorney is a document giving another person (named your “agent”) the right to act in your name (wherein you are the “principal”) within the scope and limitations set by the document. A power of attorney can be very flexible and incredibly specific or designed to give relatively broad powers of decision making to someone you trust greatly.

Attorney, in this sense, means representative – your agent becomes your attorney-in-fact, but this is different from an attorney at law (i.e. a lawyer). What sets a power of attorney apart from just any piece of paper declaring someone to be your representative is a notarization process, and a set of legal requirements necessary for a power of attorney document to be valid within the state of California. You can create and get a power of attorney notarized yourself.

Defining and Creating a Power of Attorney

A power of attorney is what you make of it. Aside from granting a person the right to act in your name, the specifics of any given power of attorney document can be incredibly specific or incredibly broad. It’s important to craft this document with care and precision, as it can be misinterpreted or misused, or simply not grant the right legal powers to give your agent the means to carry out the task you had assigned them to do.

To that end, it might be a good idea to consult with a lawyer and an experienced professional whenever you wish to design a power of attorney. Officiating the document does not require legal expertise or experience. Anyone can do it, provided they follow the right steps. But writing it and making sure it does what you need it to do, is no simple matter.

The Need to Be Precise

Most power of attorney documents do not simply grant another person the right to act on the principal’s behalf without a specific reason or purpose, and thus tend to fall within one of several archetypes. Many power of attorney documents are crafted to allow a close friend or relative to purchase a property or vehicle in your name while you are out of town, for example.

Such a purpose requires a document that goes into detail what the agent can and cannot do, and it tends to lose any authority the moment the sale is complete. On the other hand, a healthcare power of attorney document gives a loved one or trusted friend the right to call the shots on your medical care, should you be incapacitated or rendered mentally incompetent.

Such a document can give someone the power to hold your life in their hands, refuse or accept treatments and extraordinary measures, and do so for months. While you can go through the process of getting your document notarized yourself, navigating state and federal rules and getting across precisely what you want to does often require a legal mind, and one with experience in writing power of attorney documents.

Types of Power of Attorney Documents

The inherent flexibility in a power of attorney document allows it to be written for nearly any purpose that may require someone to represent you, especially in financial or medical matters. However, most power of attorney documents fall within the following archetypes:

Limited Power of Attorney

This is a power of attorney document that is limited in scope, usually created when you need someone to take care of a specific task in your name. The sale or purchase of a home, for example.

Durable Power of Attorney

This is a power of attorney document created to give an agent powers that persist even when the principal is incapacitated. While all power of attorney documents are rendered invalid upon death, many no longer give an agent any power once the principal is incapacitated or mentally incompetent. A durable power of attorney adds a provision to extend that power.

Springing Power of Attorney

This is a power of attorney document that grants an agent the power to act as the principal’s representative only when they are incapacitated.

Some power of attorney documents are built only to grant financial power, while others are built for healthcare decision making. Some are generalized. It is often recommended to keep healthcare and financial documents separate.

To improve your own privacy, the bank might not necessarily need to know about your healthcare situation, whereas your physician would not need to know about your financial planning. These institutions and professionals are required to review your agent’s power of attorney document when acting on your behalf.

Requirements for a Power of Attorney in California

The requirements for setting up and officiating a power of attorney in California can be reviewed with a professional, or in the California Probate Code, beginning with Section 4000. This provides a basic blank slate example of a power of attorney document – a guideline for the right language and structure needed for a valid power of attorney. This can be found online, or in any public library. Here are some rules to consider:

      • You must sign the power of attorney document. If you are unable to sign it, you must witness someone sign it for you.
      • The document must also be witnessed by at least two other adults.
      • The agent cannot be a witness. Your agent can be anyone, provided they are an adult and mentally competent as well.
      • You can name several agents, as well as successor agents should your first choice refuse or pass away.
      • If you are creating a healthcare power of attorney, neither your agent nor any of the witnesses are allowed to be affiliated in any way with your healthcare providers. Usually this just means none of your physicians and none of their employees can be an agent or witness to your power of attorney.
      • Your power of attorney must be notarized.
      • Your power of attorney must explicitly note that it remains in effect if you are incapacitated if you want it to be a durable power of attorney.

These are all the basic requirements for setting up a power of attorney in California. It is wise to consult a legal professional if you have specific questions or want a more in-depth explanation of the rules and requirements, or anything else in the Probate Code.

 

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