A power of attorney for financial affairs in California is the topic of this article. The basic law governing California powers of attorney is found in Sections 4000 through 4545 inclusive, of the California Probate Code. This article will discuss the use of a durable power of attorney for financial affairs (POA). The term refers to the fact that the powers given to the agent will continue to exist even if the person who signed the durable power of attorney becomes incapacitated and can no longer make their own decisions regarding the management of their finances and property unless the durable power of attorney provides otherwise.
A durable power of attorney for financial affairs can also be drafted to become what is known as a “springing power of attorney” meaning that it will not take effect until the person who signed the durable power of attorney becomes incapacitated as defined in the document.
The document can also be customized for most situations and can grant broad and sweeping powers to the agent such as the power to manage, dispose of, sell, and convey any real and personal property, run a business, for security and financial transactions and to use the property as security if the agent borrows money on behalf of the principal. It can even grant the agent the power to prepare and file tax returns on behalf of the principal and nominate a conservator of the estate of the principal if desired.
The law in California states that a durable POA in California must be dated and must be acknowledged before a notary public or signed by two witnesses. If it is signed by two witnesses, they must witness either (1) the signing of the power of attorney or (2) the principal’s signing or acknowledgment of his or her signature. A durable POA that may affect real property should be acknowledged before a notary public so that it may easily be recorded with the County Recorder in all counties where any real property is located.
A durable POA can be amended or changed only by executing a new document or by executing an amendment observing the same exact same formalities as an original. The principal retains the right to revoke or terminate any durable POA at any time, so long as the principal is competent.
Executing a durable power of attorney makes good sense when a person has a trusted person whether a friend, relative or spouse whom they trust and can rely on to protect their interests in the event they become incapacitated.
To view the entire text of any Probate Code sections cited in this article or any other California code visit: http://leginfo.legislature.ca.gov/faces/codes.xhtml
The author of this article, Stan Burman, is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this article is NOT intended to constitute legal advice.
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The author of this article is a freelance paralegal that has worked in California and Federal litigation since 1995.
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