What Is Power of Attorney
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What Is Power of Attorney
Power of attorney is a legal document to state you have appointed a representative. You are referred to as the principal, and the person representing you is referred to as the attorney-in-fact or the agent.
How Can a Power of Attorney Help Me?
It is beneficial to have a power of attorney because they can represent you if you are unable to appear. This may be to sign documents or complete ongoing tasks. You will often appoint a power of attorney if you are overseas during the sale or purchase of a house, for example.
Your agent can handle the following tasks on your behalf:
- Trade stocks and bonds
- Pay bills
- Make bank transactions
- Buy and sell property
- File tax returns
- Hire people to take care of you
- Negotiate and sign contracts
- Apply for benefits
- Arrange the allocation of income and retirement benefits
You can permit or disallow any of these powers to your power of attorney.
Can My Agent Write or Change My Will?
No, they cannot make any changes to your will or write one for you. This is clearly stated in Probate Code Section 4264. They can establish a trust for you, though.
Can My Agent Use My Assets?
No, they can only use assets or money that you specifically gift to them.
It is illegal for your agent to gift themselves anything from your estate. If you are over 65, then you can report your agent for elder abuse if they take your property without permission.
What If I Want to Make a Gift To My Agent?
As long as your Power of Attorney is not a Durable Power of attorney, you can make a gift to them. A Durable Power of Attorney is responsible for you after you are no longer competent enough to care for yourself, and therefore the law restricts such gifts. This is because gifts would be from the agent because you are not competent enough to make them.
Is It Safe to Use a Power of Attorney?
Yes, as long as you trust the Power of Attorney and believe they are competent enough to handle your affairs. The Power of Attorney will have access to your financials and the power to make changes.
Can I Appoint More Than One Agent?
Yes, people will often appoint two or more agents so they can make joint decisions on your behalf. This creates some balances and checks and reduces the chance of poor decision making. Alternatively, you might appoint a main agent and an alternate who will be your agent if the first choice is unwilling or unable to do so.
Once the Power of Attorney is In Effect, Can I Still Make Decisions On My Own?
Yes. You can still make all financial decisions if you wish.
Can The Agent Do Those Things For Me Too?
Yes, they can.
When Does My Power of Attorney Go Into Effect?
This is completely up to you. You can choose for your Power of Attorney to go into effect immediately or for it to go into effect if and when you lose the ability to make decisions for yourself.
How Long Does a Power of Attorney Last?
You can choose to have your Power of Attorney expire on a certain date or after a certain task if you wish. Alternatively, your Power of Attorney can be durable, which means it will last until you die or cancel it.
Where Can I Get a Power of Attorney Form?
You can get the form from one of the following places:
- Your estate planning lawyer
- A bookstore or stationary store
- Probate Code 4401, which can be found online or at a law library.
Ensure the form you use uses the same language as the Power of Attorney in Probate Code § 4401.
How Do I Know What To Say On My Power of Attorney Form?
Decide what powers you want and need to give to your agent. You should also consider if you really trust that person or if there are alternative people you can ask to be your Power of Attorney.
Ask your attorney for advice, so you know what you are getting into. Make sure you completely understand what this will mean and how it will affect you. Then you can either find a form that matches your needs or ask your attorney to draw up a Power of Attorney form.
How Can I Be Sure My Power of Attorney Is Valid?
It must have your signature on the form. It must also be acknowledged by 2 adult witnesses that are not agents or signed by a notary public.
If you want a Durable Power of Attorney, it needs to say one of the two following things:
- “This Power of Attorney shall become effective upon the incapacity of the principal.”
- “This Power of Attorney shall not be affected by subsequent incapacity of the principal.”
Check the California Probate Code Section 4000 to Section 4465 to ensure you use the correct language.
What If I Create a Power of Attorney and Later the Court Appoints a Conservator For My Estate?
You can continue to use your Power of Attorney unless the conservator or the court says otherwise. Your agent must inform the conservator and you about everything they do on your behalf.
What Can I Do If There is a Dispute About a Power of Attorney?
You can cancel the Power of Attorney at any time.
Alternatively, your relatives, friends, or government officials can file a petition with the Probate Department if they are aware of issues with your Power of Attorney. The court will investigate the issue and make a decision.
Can I Cancel or Change My Power of Attorney?
Yes. You must do it in writing and notify any institutions of the changes or the new Power of Attorney. They can still use your original Power of Attorney until you do this.
What If The Agent Is Having Problems Getting Others to Recognize the Power of Attorney?
The court can help out. The agent can file a petition for confirmation that they are acting as your agent lawfully.
If the bank or another institution is causing issues, the agent can request the court’s help. The court can order institutions to honor the Power of Attorney.