What is a Power of Attorney?
A Power of Attorney is a legal document which allows an individual to act on behalf of another individual under certain circumstances. Under a power of attorney, there is a legal relationship between the person giving the powers (the principal), and the person receiving the powers (the agent). The powers given under a power of attorney can be broad or can be very narrow and limited. A durable power of attorney means the power of attorney would remain in effect if the principal were to become incapacitated. The power of attorney is effective as soon as it is signed before two witnesses and notarized.
This means that while you might give a broad power of attorney to your agent, telling the agent not to use it unless you were to become incapacitated, the agent could use the power of attorney upon receipt. Because of this, you may choose to use a springing power of attorney, which only takes effect upon a specific, triggering event—such as your incapacitation. When you give someone a Power of Attorney, you still have the right to control both your money and your property; in theory, your agent is not supposed to take or use your money without your permission, however the agent has the right to access your money under a power of attorney. Because of this, it is crucial that you choose an agent you trust implicitly.
A power of attorney could be extremely beneficial to you and your family. If you were to become incapacitated, it would be too late to execute a power of attorney. Having a power of attorney in place would give an agent of your choice the power to handle your affairs, presumably as you would have handled them on your own. Should you become incapacitated without a power of attorney in place, your spouse or family would have to petition the court to appoint a Conservator—a costly and lengthy process.
Who Can Have a Power of Attorney in California?
Any person in the state of California who is mentally competent and at least eighteen years of age can execute a power of attorney. The power of attorney must be put into writing and must be signed, dated and witnessed. The power of attorney can be witness by either a notary public or two adults. The agent you choose cannot be a witness and does not have to sign the power of attorney document.
Who Can Serve as an Agent for a California Power of Attorney?
You can choose anyone you want as an agent for your California power of attorney, so long as that person is over the age of 18. When granting power of attorney, you are authorizing an agent to make decisions on your behalf. Often, the agent will be making those decisions when you are unable to make them on your own. In the power of attorney document, you will define the responsibilities of the agent, making them broad, or narrow and specific. As an example, perhaps you want your agent to make medical decisions for you in the event you were unable to make those decision on your own.
Or, you might want your agent to handle a single real estate transaction while you are out of the country. It can be a good idea to name a secondary agent so that if the primary agent is unable or unwilling to serve, the second agent can step in. You could also name co-agents who make the decisions on your behalf together. It is extremely important that you are able to trust the person you choose as agent with your most important financial, legal or healthcare decisions. Take note of how your proposed agent handles his or her own financial and legal affairs. You should discuss the issue with your proposed agent to ensure he or she agrees to serve as agent before officially appointing the agent.
What Rights Does the Agent for a Power of Attorney Have?
The agent you name in your power of attorney has only the powers you give him or her within the power of attorney document. You can make these powers very specific, or they can be much broader, depending on your needs, and your level of trust in the agent you choose. The agent has the rights given him or her by the principal, but also has obligations. The agent is bound by fiduciary duty to always act in the best interests of the principal—and never to act in his or her own interests. Agents are urged to keep careful records of all duties performed on behalf of a principal in the event the principal or the court asks for an accounting.
What are the Different Types of Powers of Attorney?
A limited power of attorney gives someone else the power to act in your stead for a narrowly defined purpose, while a general power of attorney is more comprehensive, giving an agent many of the same powers and rights you have yourself. As an example, you could give your agent a general power of attorney which gives your agent the right to sign legal documents on your behalf, conduct financial transactions on your behalf, or pay your bills.
Can I Revoke a Power of Attorney?
While a power of attorney terminates upon the death of the principal, it can also be revoked by the principal. If you suspect the agent is not acting in your best interests, you can go to a California probate court—on your own, or through a probate attorney—and demand that your agent file an accounting, which shows how your money was spent. The court will then set a hearing, during which you can challenge the information given you in the accounting. If the court finds your agent took money without your permission, you could sue in a civil court or even press criminal charges. You can revoke a power of attorney by destroying the original and all copies, or by executing a document which revokes the Power of Attorney.
How the Gullotta Law Group Can Help
If you are considering a power of attorney, it is a good idea to discuss your plans with an experienced estate planning attorney from the Gullotta Law Group. We can answer any questions you may have regarding a power of attorney and can help you choose the best agent for your specific circumstances. Don’t wait—contact a knowledgeable California estate planning attorney from the Gullotta Law Group today.