California Durable Power of Attorney

Introduction

Key Things to Know

1. 1

   A durable power of attorney lets someone act for you. It names an agent, also called your attorney-in-fact, to handle your money, property, and business matters. Durable means the document keeps working even if you later become incapacitated, which is usually why people set one up.

2. 2

   It is not durable unless you say so. California does not make a power of attorney durable by default. Under Cal. Prob. Code 4124 the document must expressly state that the agent's authority survives your later incapacity; without that language, Prob. Code 4155 ends the agent's authority when you lose capacity to contract.

3. 3

   You choose notary OR two witnesses. Under Cal. Prob. Code 4121 the document must be dated and signed, and then either acknowledged before a notary public or signed by at least two adult witnesses. The two methods are alternatives, not both.

4. 4

   Your agent may not be a witness. Under Cal. Prob. Code 4122 each witness must be an adult, and the attorney-in-fact (your agent) may not act as a witness. This is the financial-POA witness rule; it is not the stricter advance-health-care-directive rule.

5. 5

   California publishes a statutory short form. The Uniform Statutory Form Power of Attorney at Cal. Prob. Code 4401 is legally sufficient when Section 4402 is met. It covers financial and property matters only and does not authorize health-care decisions.

6. 6

   Some powers need express language. Under Cal. Prob. Code 4264 an agent may create or revoke a trust, make or revoke gifts, change survivorship interests or beneficiary designations, or make a loan to the agent only if the document expressly grants that authority.

7. 7

   Real-property use means recording. A power of attorney used to convey or encumber real estate must be acknowledged and recorded with the county recorder where the property sits, in the manner Cal. Civ. Code 2933 sets for a power to execute a mortgage.

8. 8

   It only works while you have capacity to sign. A power of attorney must be signed by a principal who still understands and authorizes it. If the person is already incapacitated, the family's route is a court conservatorship, not a power of attorney.

California Requirements for Durable Power of Attorney

• Notarize or Sign Before Two Witnesses

  Under Cal. Prob. Code 4121, the power of attorney must be dated and signed by you (or in your name at your direction), and then either acknowledged before a notary public or signed by at least two adult witnesses who meet Section 4122. The two methods are alternatives.

• Your Agent May Not Act as a Witness

  Under Cal. Prob. Code 4122, each witness must be an adult, the attorney-in-fact (your agent) may not act as a witness, and each witness must observe you sign or acknowledge your signature. This is the financial power-of-attorney witness rule, not the stricter advance-health-care-directive rule.

• Durability Language Is Required

  California does not make a power of attorney durable by default. Under Cal. Prob. Code 4124 the document must expressly state that the agent's authority survives your incapacity; otherwise Prob. Code 4155 terminates that authority when you lose capacity to contract.

• Springing Effective Date (Optional)

  If you want the power of attorney to take effect only on a future event such as your incapacity, Cal. Prob. Code 4129 lets you name one or more persons who can declare under penalty of perjury that the event occurred, making the document effective on that written declaration.

• Uniform Statutory Short Form (Prob. Code 4401)

  You may use California's Uniform Statutory Form Power of Attorney at Cal. Prob. Code 4401, which is legally sufficient when Section 4402 is met. It covers financial and property matters only and does not authorize health-care decisions.

• Record It for Real-Property Use

  A power of attorney used to convey or encumber real estate must be acknowledged and recorded. Under Cal. Civ. Code 2933 it is recorded in the same manner as a power of attorney for grants of real property, filed with the county recorder where the property is located.

• Special Powers Need Express Language

  Certain high-risk powers, sometimes called hot powers, are allowed only if your document specifically grants them. Under Cal. Prob. Code 4264, your agent may create or revoke a trust, make or revoke gifts, change survivorship interests or beneficiary designations, or make a loan to the agent only when the document expressly says so.

• Revocation by Writing

  Under Cal. Prob. Code 4151 you may revoke the power of attorney under its own terms or by a writing, and that right cannot be limited in the document. If the power of attorney was recorded, record the revocation too so it gives notice.