A power of attorney essentially permits another person to make choices in your name. In its simplest form, a document acting as a power of attorney can be life-changing, life-saving, and very dangerous in the wrong hands. Because of that – and because of the value we place on choice and individual liberty – creating and legitimizing a power of attorney in California takes a few steps.
It helps to understand why this document is important – in the sense of what it could do for you, and why it is a good idea to help your spouse or loved one obtain a power of attorney for specific circumstances and purposes. First, let us go over what a POA is exactly.
What Is a Power of Attorney (POA)?
A power of attorney, or POA, is any legal document that, by your own volition, gives someone the power to act in your place. POA comes in several forms, each possessing a different function. For estate planning reasons – and for the future of your finances and healthcare – the most notable form of a POA is the durable power of attorney.
Unlike ordinary power of attorney documents, a durable power of attorney document exists specifically to allow your agent to continue acting on your behalf even when you are rendered unconscious, incapacitated, or otherwise incapable of communicating your wishes coherently, or at all.
An ordinary power of attorney document allows someone to essentially act on your behalf if you are mentally capable of making decisions as well. They can go around and help you get your affairs in order. A durable power of attorney, on the other hand, can be a valuable tool in estate planning and as a general legal option to protect yourself and your assets in case you find yourself incapacitated.
Preparing powers of attorney is not very complicated, if both parties are willing and ready to draft and notarize the necessary paperwork. On the healthcare side of things, power of attorneys for healthcare can well and truly save your life – or in the very least, allow you to communicate your wishes through someone else when you yourself are unavailable for speaking.
Understanding Healthcare Directives
Healthcare directives are legal documents that help healthcare professionals determine what to do if you are unavailable and incapacitated. They basically exist as legally-valid stand-ins for your own choice and opinion and come in different shapes and forms.
Most relevant to this article is the durable healthcare power of attorney, a document that gives your chosen agent the ability to make medical decisions for you even if you are in a coma or are suffering some other incapacitation. Other examples of healthcare directives include:
- DNR (do not resuscitate) order.
- Living will (which outlines the procedures you adamantly do not wish to have performed on you).
Getting POA Documents in California
There are two simple requirements to creating legally valid powers of attorney:
- Namely, both individuals (you, the principal, and your attorney-in-fact/agent) need to be adults of sound mind at the time the document is created.
- You must have a notary or witnesses.
If you want your spouse to possess a durable power of attorney, then all they must do is sign a power of attorney document with you present, before a notary public, or several witnesses of sound mind capable of giving a sworn testimony. You sign the document first in their presence, followed by them. The witnesses or notary needs to be someone who is not your agent/attorney-in-fact, healthcare provider, employee of your healthcare provider, or otherwise related to anyone giving you medical treatment.
To begin, first you need a POA form. In California, the state Probate Code offers an official form for both a financial power of attorney document and a healthcare power of attorney document. These can be found under Section 4401 and 4701 of the Probate Code respectively. Both forms offer you the control over whether you would like your POA to be ordinary or durable, effective immediately or only upon incapacitation.
Forms available under the Advance Healthcare Directives section of the Probate Code also includes a form for a living will, the ability to opt in for organ donation upon your death, and more. While the statutory form is good in some situations, getting a more robust document through a power of attorney lawyer is generally preferred.
Types of Powers of Attorney
Aside from being durable or non-durable, there are other types of powers of attorney. A springing power of attorney, for example, goes into effect once you are incapacitated. The difference lies in the power given to the agent upon signing the document. In a durable power of attorney, your agent can make choices on your behalf regardless of your mental state. In a springing power of attorneys, they can only make choices on your behalf once you’re incapacitated.
If you are uncomfortable with giving one person absolute control but want the security of having an official and legal representative when you are incapacitated, then you can create a limited power of attorney. This allows one agent to act on your behalf within a limited scope – for example, they may only represent you for a short time, or under specific circumstances, or for only a certain task or transaction. This document requires careful preparation by a professional.
A Will, Trust, or Both?
Estate plans are not meant to be limited in the number of tools used to fully flesh out your plan. For most, the biggest distinction is whether to use a trust or to use only a will – and once the choice is made, the next one is to choose a specific kind of trust. But there are many estate planning tools that are simple to set up, straightforward, and can not only save you a lot of time and trouble, but save your life as well, or at least your dignity if you wish your healthcare to take a certain direction.
A living will, DNR, organ donation provision and power of attorneys for both your finances and your healthcare (separately, usually) are all easy tools to implement into any estate plan, and they can make a tremendous difference down the road. However, it is not a good idea to rush through the process or take every estate planning option under the sun. Take time to go over all your options with a local estate planning professional, to help you make the best possible choice.