Power of Attorney
What is a power of attorney?
A Power of Attorney is a document that lets you appoint someone to represent you.
If you sign a Power of Attorney, you are the principal. The person you appoint to represent you is called the agent or attorney-in-fact.
How can a power of attorney help me?
A Power of Attorney lets you authorize someone to handle a specific task, like signing documents for you while you are away. For example, your agent can sign sale documents or contracts for the purchase of a house, or to sell your car.
Or, your Power of Attorney can authorize your agent to handle on-going tasks.
Here are examples of tasks you can have your agent do:
- make bank deposits, withdrawals or other transactions
- trade stocks and bonds
- pay your bills
- buy or sell property
- hire people to take care of you
- file your tax returns
- arrange the distribution of retirement benefits
- negotiate and sign contracts
- apply for benefits like SSI or Medi-Cal
Your agent can do almost anything the Power of Attorney permits. You can also limit the kinds of financial decisions you want your agent to be able to make.
Can my agent write or change my will?
No. Your agent can establish a trust, but cannot make or change your Will (Probate Code Section 4264 ).
Can my agent use my assets?
No. Unless you specifically make a gift to him or her, it is against the law for your agent to make gifts to him or herself.
If you are 65 or older, and your agent takes your property without authorization, s/he can be charged with elder abuse.
What if I want to make a gift to my agent?
You can make a gift to your agent. However, if your Power of Attorney is a “Durable Power of Attorney,” i.e. one that remains in effect even if you become incompetent, a gift to your agent after you become incompetent may be restricted by law. This is because, if you are incompetent, it would be the agent who is deciding to make the gift of your property to him or herself. You may want to talk to a lawyer first.
Is it safe to use a power of attorney?
It is safe if the person you appoint is trustworthy and competent. Be careful to appoint someone you trust completely. That person may be able to access your bank accounts, sell your house, buy and sell stock in your name, cancel your insurance, or perform other important and sensitive transactions.
Can I appoint more than one agent?
Yes. Sometimes people appoint two or more people who make decisions for you together.
Or, you can appoint alternate agents. The alternate can step in if the other agent is unable or unwilling to serve.
Once the power of attorney is in effect, can I still make decisions on my own?
Yes. You can make all the financial decisions you used to before you had a Power of Attorney.
Can the agent do those things for me, too?
Yes, your agent can.
When does my Power of Attorney go into effect?
You decide when it goes into effect. You can make it go into effect immediately (when you have all the needed signatures), or only if you lose the ability to make financial decisions.
How long does a power of attorney last?
You can decide if you want your Power of Attorney to expire on a certain date, or after your agent does a specific task. Or, your Power of Attorney can be durable. This means it will last either until you cancel it or until you die.
Where can I get a Power of Attorney form?
You can get a blank Power of Attorney form from:
- a stationery store or other store that sells pre-printed legal forms
- your estate planning lawyer, or
- Section 4401 of the Probate Code .
If you use a preprinted form, we recommend you use one that uses the same words as the Power of Attorney from Probate Code, § 4401. This is the form that banks, escrow companies, stockbrokers, and other institutions know best.
Some institutions, like banks, have their own Power of Attorney forms.
How do I know what to put in my Power of Attorney?
First, decide exactly what powers you want to give to your agent.
Then, ask yourself if you trust that person. Are there alternatives to a Power of Attorney?
Next, ask a lawyer for advice, or read about Powers of Attorney so you will understand what you are doing before you sign anything.
If you have one or more people you trust, and you know what powers you want to give them, you can find a preprinted document that matches your needs.
How can I be sure my Power of Attorney is valid?
You must sign the Power of Attorney. You can ask someone to sign for you, but you have to watch him or her do it.
The document must be acknowledged by a notary public or signed by at least 2 adult witnesses. An agent cannot be a witness.
If you want the Power of Attorney to be durable, it must say either:
"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 similar words that show you want the document to be valid even if you become incapacitated.
What if I create a power of attorney and later the court appoints a conservator for my estate?
Unless the Court or the conservator says otherwise, your agent can continue using the Power of Attorney to handle your affairs.
Your agent must tell you and the conservator about everything s/he does in your name.
What can I do if there is a dispute about a power of attorney?
You can end or cancel the Power of Attorney at any time. (See: Can I cancel or change my Power of Attorney? below.)
If your friends, relatives or officials are aware of problems with a Power of Attorney, they can file a petition with the Probate Department. The petition can ask the Court to review what the agent has done. The Court can decide to investigate furthe
Can I cancel or change my power of attorney?
Yes. Cancel it in writing. Then, give your statement or new Power of Attorney to any institutions [like banks or stockbrokers] that had the old Power of Attorney.
Until you do this, they can still use your original document.
What if the agent is having problems getting others to recognize the power of attorney?
The agent can ask the Court for help by filing a petition to ask the Court for confirmation that s/he is acting as your lawful agent.
Or, if a bank or brokerage firm does not accept the Power of Attorney, your agent can ask the Court to order the institution to honor his/her authority.
See Probate Code Section 4540 .