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Question
Do I really need a power of attorney in California?
Having a power of attorney is a personal choice, but it is one that you should consider, especially if you have minor children or have health issues. If you are ever unable to make decisions for yourself, having a power of attorney in place can give you and your loved ones peace of mind that your financial needs are met.
With FindLaw, you can easily create a power of attorney. Click on the links below to jump down the page:
How it works
The process takes less than an hour, and you can complete it from the comfort of your home.
Create an account
Create a secure account which is accessible through an easy dashboard you can access any time
Gather information
Indicate who your agent will be and what authority you want them to have
Complete your document
Answer all questions, then we’ll generate your digital documents for downloading, printing, and signing
Make it legal
Carefully follow the instructions provided in the form, which may include signing your documents in front of witnesses or a notary
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Steps to complete your power of attorney
Before you think about creating a power of attorney, you need to decide who your agent will be and what powers you want to give to your agent. Follow these steps:
Understand wow a POA works in California
A power of attorney is a legal document that a person (the “principal”) uses to give another person (the “attorney-in-fact” or “agent”) the authority to make decisions on the principal’s behalf. The agent’s actions under a power of attorney are as binding as if the principal made them.
If you want someone to make financial decisions for you while you are incapacitated or otherwise unable to make them yourself, you will need to create a power of attorney.
In California, you usually can delegate the authority to make financial and property decisions in the same document, but the authority to make healthcare decisions must be in a different document called a power of attorney for health care (also called a living will).
Choose your agent
Your agent’s decisions will have the same legal weight as if you made them. An agent should be responsible and trustworthy and understand your wishes. You can choose different agents for different powers of attorney.
You can designate more than one agent in the same power of attorney, but they will have to make decisions unanimously if you do not state otherwise. Generally, it is wise to avoid co-agents to avoid confusion and conflict. You always should select successor agents to make decisions if your original agent is unable to act.
Choose the powers you want your agent to have
Do you want your agents to have the authority to make every financial decision you can make for yourself, or do you want your agent to have limited authority? You can restrict their powers to a specific act or type of transaction, or you can make them broad.
When limiting their powers, be careful about restricting them to the point where they cannot act on your behalf if you are incapacitated.
Select witnesses
In California, your power of attorney needs to be signed by two witnesses or a notary public. California law prohibits the following people from being witnesses:
- Minors
- The person who will serve as your agent under the power of attorney
- Your health care provider or their employee
- An operator or employee of a community care facility or residential care facility for the elderly
Fill out your form and make sure it complies with California law
When filling out your form, make sure you clearly state which powers you are giving your agent.
If you want your power of attorney to be effective when you are incapacitated, it must include one of the following phrases or similar language:
- “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.”
The first option makes your power of attorney effective on the date you sign it. If you choose the second option, it only will become effective when you are incapacitated. If you do not use either of these phrases or similar language, your power of attorney will terminate when you are incapacitated.
Sign your power of attorney
When you sign your power of attorney, make sure it meets the following legal requirements:
- It must state the date you executed it
- It must be signed by you, or if you are unable to sign, another adult can sign in your name in your presence and at your direction
- Each witness or the notary public shall witness your signing of the power of attorney or your acknowledgment that it is your signature
Commonly asked questions about California power of attorney forms
There are several types of powers of attorney in California. A power of attorney can be durable, meaning it remains effective when the principal is incapacitated. A power of attorney is nondurable or general if it terminates when the principal is incapacitated.
There are four main types of power of attorney in California.
Power of Attorney for Health Care
You can use the power of attorney for health care to designate an agent to make health care decisions for you. Unless you state otherwise in the power of attorney, it will not be effective until you are incapacitated.
Special or Limited Power of Attorney
A special or limited power of attorney is a power of attorney that grants limited authority to an agent. For example, you could give your agent the power to negotiate a real estate transaction for you.
A common limited power of attorney is the power of attorney for childcare. This power of attorney allows you to give another adult the authority to temporarily care for your child if you need to be out of town for a significant time.
Durable Financial Power of Attorney
This power of attorney also may be called a durable power of attorney for personal affairs and property management. This power of attorney allows your agent to manage your finances and personal affairs, including managing property, paying bills, handling tax matters, and providing meals.
It is durable because it remains effective when you become incapacitated. If you do not use language stating that the power of attorney will not be affected by your incapacity, it will not be a nondurable or general power of attorney and will cease being effective on the date you are incapacitated.
Springing Power of Attorney
A springing power of attorney is a power of attorney that does not take effect until a specific event occurs. The most common event that people choose is incapacity because they do not want their agent to have power unless they cannot make decisions for themselves.
In California, you can designate one or more people to determine when the event occurs. Your power of attorney will not become effective until they sign a written declaration that the event has occurred.
The drawbacks of springing powers of attorney are:
- Other people and businesses may not accept your agent’s authority without convincing evidence that the event has occurred
- Waiting for a physician or the people you designate to declare that incapacity or another event has occurred can create delays before your agent can act
You do not need to hire a lawyer to create a power of attorney under state law. You can download one of the forms we offer, which will save you time and money.
If, however, you have significant assets, have complicated family dynamics, or are uncomfortable creating a power of attorney on your own, you can hire an attorney to draft powers of attorney for you.
Revocation of a power of attorney must be in writing. However, if you only want to revoke your agent’s authority, you can do so orally or in writing. This can allow you to remove an agent and have a successor agent replace them without drafting a new power of attorney.
Although not required, it is a good idea to have the revocation in writing and give the revocation to your agent and any businesses or people your agent has worked with on your behalf.
An agent’s authority is revoked automatically when the principal dies or if the agent and principal divorce.
If your elderly parent is competent, you should discuss their financial goals with them. You can help them fill out a power of attorney form or hire an attorney to help them.
If your parent is not competent, they will not be able to create a power of attorney. If that is the case, you or another family member will need to ask a court to appoint a conservator to make decisions for your parent.
A business can refuse to accept a power of attorney if it has a valid reason for doing so. A person or business is not required to do business with your agent if they would not be required to do business with you. They also are not required to honor your agent’s authority if your agent previously breached any agreement with them. If your agent asks a bank or financial institution to open a deposit account or take out a loan for you, it can refuse if you do not already have an account with it.
A person dealing with your agent can ask for information to prove the validity of the power of attorney. If they refuse to honor your agent’s authority without a valid reason, your agent can ask a court to compel them to honor the agent’s authority.
California law requires copies of powers of attorney to be certified. The certification must state that the person certifying the copy has examined the original and that it is a true and correct copy. Any of the following people can certify a copy:
- A lawyer licensed in California
- A notary public commissioned by the state of California
- A California government official who is authorized to make certifications
You may want to speak with a lawyer if:
- You don’t know who to choose as your agent
- You want to use a POA for Medicaid planning
- You want to discuss which powers you should give your agent
- You want legal review of your completed power of attorney
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