Is that Power of Attorney Valid? See what California requires

When preparing power of attorney documents, California has many standards for validity of the powers.   The statute that governs California’s effective power of attorney provision is found in the Probate Code.

Legal sufficiency is different than logistic or practical sufficiency of the powers.  First, lets talk about the legal sufficiency.

The Probate Code lists the legal sufficiency standard for a power of attorney when all of the below are met as follows:

  1. The POA (“Power of attorney“) must be dated.  If there is not date, it is invalid.  The reason for this is that when there are fights in determining capacity of the person who signs it, or if there is a subsequent power which may have priority, then the date is a big issue in determination of capacity and priority.
  2. The principal must sign the power of attorney, or he must give directions to someone else to sign it for him, in his presence.
  3. The power of attorney must be acknowledged in front of a notary, or be witnessed by two witnesses.  If the power of attorney is used to handle real estate transactions, it must be acknowledged in front of a notary.

The Practical Issues involving Power of Attorney Documents in California:

  1.  Most banks want you to sign their power of attorney form.
  2. Most banks will not accept co-attorneys in fact.
  3.  You can limit the powers you give to your agent in the power of attorney.
  4.  You can limit the time during which the agent can act on your behalf in the power of attorney.
  5.  When you make the power durable, then it survives your incapacity.
  6.  Power of attorney expires at death in California.
  7.  You can nominate a conservator in a power of attorney.
  8.  The courts usually give effect to the most recent power of attorney signed by you, if there is a dispute.
  9.  The printed form power of attorney in California does not cover everything.
  10.  You can amend, change or modify your power of attorney, so long as you have capacity.
  11. Power of attorney for real estate transactions must be recorded in the County Recorder’s office.  Los Angeles County Recorder’s Office has additional requirements for recordings of the Power of Attorney.
  12.  Your agent under the power of attorney owes you a fiduciary duty.
  13.  Your agent must keep your assets separate from his assets.
  14.  Your agent may be prosecuted for elder abuse, if you, as principal are 65, and he/she transfers your property to himself without authority.
  15. A springing power of attorney can start going into effect when you become incapacitated, if you designate one or two people who can sign a declaration under penalty of perjury in California that you are incapacitated.  You can also designate other events which make the power of attorney become effective when a condition occurs.

How we can help you with power of attorney documents?

a.  We can help prepare effective power of attorney documents for you before you are incapacitated.

b.  We can discuss with you the pro and con of having a power of attorney.

c.  If you have an old power of attorney, we can bring it up to date.

d.  If your children give you a tough time about who should have a power of attorney, we can help you with the control you need to manage your assets and your health.

Mina Sirkin is an attorney who handles power of attorney disputes and conservatorships.  Feel free to call us for a complimentary consultation about power of attorney issues in Los Angeles and California.  Call our attorney at 818.340.4479.

Are you located in the following areas? Talk to our attorneys in Los Angeles County, Los Angeles areas, Hollywood, Burbank, San Fernando Valley, Woodland Hills and in Glendale.