An Overview of the Durable Power of Attorney (POA) in California

What does “power of attorney” mean?

Power of attorney is a type of legal document that authorizes another person to act on your behalf. You might, for example, give someone general power of attorney, which authorizes them to purchase or sell property, manage your finances and investments, run a business, or handle government benefits for you.

Traditional types of power of attorney, however, all have some limitations in that they may have an expiration date, or may be automatically revoked in the event of mental incapacitation.

The durable power of attorney

The point of durable power of attorney is to allow that power of attorney to endure even if you become incapacitated. This means the person to whom you grant durable power of attorney (your agent or “attorney-in-fact”) maintains the ability to make financial or healthcare decisions on your behalf when you become incapable of doing so yourself, whether due to unconsciousness, mental illness, injury or other factors.

Establishing durable power of attorney

Durable power of attorney should be a key component of your California advance health care directives. If you have health care power of attorney, this is already a durable power of attorney simply by its nature.

But with any other type of power of attorney, you must include language in the document that specifically makes it durable to ensure proper authorization of your chosen agent to continue operating on your behalf in the case of your incapacitation.

California has official power of attorney forms that include the language you need to make the power of attorney durable if it is your desire to do so. You should work with your estate planning attorney on completing these forms to ensure you comply with all state requirements that make it a valid, legally binding document.

Once you have completed the form, the power of attorney becomes valid immediately, so it is important to be certain about your decision before making it legally binding.

Can the durable power of attorney be revoked?

You can, of course, revoke the power of attorney at any time for any reason, so long as you have the necessary competence to do so (a court can invalidate the document if it determines you were not of sound mind at the time you created it).

To revoke the document, you will need to draft an official statement of revocation that includes your name, the date, your statement, the date of the initial power of attorney document, your assigned agent, and your signature. You should distribute this revocation to your agent and anyone with whom they may have communicated.

What happens if my spouse is my agent and we get divorced?

If you listed your spouse as your agent and you end up getting divorced, you should know that your power of attorney will be immediately terminated, and you will need to find a new agent to take on the role.

Who you choose to be your agent is up to you — many people choose their spouse or other trusted loved ones or friends. Whoever you choose, you should trust them implicitly with your important financial and legal affairs, and they should be organized, financially responsible, and willing to take on the duties of the role.

Don’t wait set up your durable power of attorney today

Amity Law Group’s estate planning attorneys have more than 25 combined years of experience helping families of all backgrounds plan ahead for unexpected situations.

Call us today at (626) 307-2800 for a free consultation to discuss the durable POA, advance health care directive, living trust, and more.

Free Legal Resources: The Ask Amity Show