California Durable Power of Attorney Laws

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A power of attorney in California is an agency agreement in which the principal gives certain legal authority to the person named as the agent. The principal gets to define, shape and limit the authority granted. A durable power of attorney does not end when the principal is incapacitated.

If you need someone to act on your behalf in California, creating a power of attorney is one fairly easy way to do this. By preparing and signing a power of attorney form, you appoint someone else as your "attorney-in-fact," or agent, and give them the authority to act on your behalf in certain matters. Regular powers of attorney are extinguished if you become incapacitated, but durable powers of attorney are not.

TL;DR (Too Long; Didn't Read)

California's law on Durable Power of Attorney can be found in Probate Code Section 4000 through 4545 and the statutory form in Probate Code Section 4401. California's Durable Power of Attorney for Health Care Law is contained in Probate Code Section 4600 through 4806 and the Advanced Healthcare Directive form in Probate Code §4701.

California Power of Attorney

Nobody can be everywhere at the same time, but still, business must get done. If you are selling a vehicle but get called out of state, for example, it's great to have a document that lets a trusted adult sign a bill of sale in your place. That's where a California legal document called a power of attorney can make your life easier.

A power of attorney is essentially an agency agreement. The person signing it, known as "the principal," gives certain legal authority to the person named in it as their agent. The principal gets to define, shape and limit the authority granted to the agent.

A power of attorney can give an agent a narrow authority (e.g., to sell a 2015 Honda Accord within a given time frame for a certain price) or very broad power. A California general power of attorney allows you as the principal to appoint an agent who can essentially step into your shoes and take any action or make any decisions that you could make concerning your finances or legal affairs.

Durable Power of Attorney

Generally, powers of attorney end on a termination date included in the document or on the death or incapacity of the principal. However, California law also permits a type of power of attorney that remains intact if the principal becomes incapacitated; it is called the California durable power of attorney.

You create a durable power of attorney by including either of these two phrases in the document:

  • “This power of attorney shall not be affected by subsequent incapacity of the principal.”
  • “This power of attorney shall become effective upon the incapacity of the principal.”

Any similar language is also sufficient as long as it expresses the intention that the authority will continue or begin when you are incapacitated.

Uses of Durable Power of Attorney

A durable power of attorney, like a regular power of attorney, can confer limited or broad authority. But in all durable powers of attorney, the agent's authority to act continues after the principal becomes physically or mentally incapacitated, or that do not begin unless the principal becomes incapacitated. Many people use durable powers of attorney to be sure that a trusted person will step in and handle their affairs if they have a medical crisis or severe cognitive decline.

These powers of attorney are called "springing" if the authority they grant only begins ("springs" into existence) when the principal is incapacitated. If you wish to write one of these documents, it's a good idea to designate some trusted person who will conclusively determine whether you are incapacitated. It can be the same person as your attorney-in-fact, or it can be a third party.

California Advance Health Care Directive

The durable power of attorney for health care can play an important role in California. It authorizes someone to make health-care decisions for you when you no longer have the capacity to make them yourself. In California, this authority can be combined with a living will to create an Advance Health Care Directive.

There is a statutory form you can use to create an Advance Health Care Directive. The first part of the Directive is a statutory form for a durable power of attorney for health care. Part two allows you to create a living will in which you give specific instructions about any aspect of your health care that is important to you, like your wishes about using treatment to keep you alive in certain situations. You can also use the form to donate your organs after death.

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About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.