You are your own person. But there may be times when you need someone else to make certain decisions in your name. When it comes to end-of-life care and estate planning, some circumstances call for the help of a competent and trusted individual to make crucial decisions at times when you may be incapacitated, temporarily or permanently. That is what a durable power of attorney, or DPOA allows you to do.
This is an important detail, because a conventional power of attorney does not permit someone to act on your behalf while you are incapacitated. This is to prevent or minimize abuses of power – if someone misuses their power as an agent while you are mentally competent and communicative, for example, you can easily revoke their power.
A DPOA requires an additional measure of trust, as it becomes harder for the agent to be contested. Like other power of attorney forms, its template can be found in the California Probate Code. The sections that specifically pertain to the Powers of Attorney are Sections 4400 to 4409. However, you can also work with an estate planning professional to develop your own valid power of attorney form.
A DPOA is one of several forms of power of attorney. Additionally, a power of attorney may be:
The requirements for setting up a durable power of attorney in California are not steep. The California Probate Code offers the template forms for the creation of a power of attorney, and you can ask any estate planning professional or family law attorney to help you with customizing, drafting, printing, notarizing, and preserving your power of attorney.
In addition to the right forms and documents, you will need to be at least 18 years of age to create a power of attorney. A power of attorney must also have legal capacity, for which at least two witnesses or a notary is needed. An agent named on a power of attorney cannot be a witness. Both witnesses must sign the power of attorney.
When you name someone as your agent through a power of attorney, they may do one of three things:
You cannot punish an agent for not acting at all. While you grant someone the ability to act in your name through a power of attorney, they do not really have an obligation to do so. You cannot force them to make a decision for you, even if you are incapacitated. In fact, an agent under a power of attorney can basically quit at any given point in time.
This is why it is important to consider naming a successor agent, especially if you are worried about your agent getting cold feet, or simply not having the ability nor the presence of mind to act as your agent when the time comes.
If your agent acts in good faith, you cannot punish them. This means that if they act in your best interest, then they’ve done as has been asked of them.
For example, if you name your best friend as your financial agent, and they do something you did not want them to do, but it was for the benefit of your estate, then they cannot be held liable – as long as they did it while not knowing that it goes against your wishes.
The same goes for medical decision-making – it is important to be explicit with your agent. You cannot expect them to act not just for the sake of your own good, but exactly as you want them to, without being specific about what that means.
However, you can punish an agent who acts in bad faith. Anything that goes against your best interests, or can be interpreted as being for the agent’s gain rather than your own, would be acting in bad faith. Abuses of power can result in civil and criminal charges – an agent who misuses their power of attorney to transfer funds, unwittingly subject someone to treatment they did not want, or otherwise willfully neglect or even spite their duties, may be sued for a breach of fiduciary duty in addition to charges such as fraud, embezzlement, theft, elder abuse, and/or exploitation.
If you are incapacitated, then your family can raise an objection on your behalf. The petitioner may be named your legal conservator and can then take legal action against the agent for abuses of power in your name.
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