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How to Make a Power of Attorney in California FAQ

Written by: Catherine Hodder, Esq. , Senior Legal Writer
Reviewed by: Madison Hess, J.D. , Legal Writer
Last updated May 13, 2024

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A power of attorney is a helpful legal document where you decide who can handle your financial affairs if you cannot. A power of attorney avoids a court appointing a conservator on your behalf to make financial decisions.

Frequently Asked Questions

What Is a Power of Attorney?

power of attorney is a legal document where you (as the principal) give someone you trust (your agent) the authority to act on your behalf. In California, the agent is also called your attorney-in-fact. The agent can then make decisions and take action in the principal’s place. Typically, these decisions relate to financial matters. To have someone make medical decisions or handle healthcare matters, you may need a healthcare directive or healthcare power of attorney.

Who Can Be My Agent?

In California, any competent adult can serve as an agent. Your agent has broad powers, such as the power to access your bank accounts and bind you to contracts, so you should choose someone you trust who is organized and can handle financial matters. They have a fiduciary responsibility to act in your best interest, so they should not have any conflicts of interest.

You can choose a family member, friend, or even a financial institution to serve as your agent. It is a good idea to name a backup or alternate agent if your primary choice is unable or unwilling to serve.

What Can My Agent Do in California?

Under California law, a principal can give their agent authority to handle the following:

  • Real property, meaning real estate transactions
  • Tangible personal property, meaning your possessions
  • Stocks and bond transactions
  • Commodity and option transactions
  • Banking and other financial institution transactions
  • Business operating transactions
  • Insurance and annuity transactions
  • Estate, trust, and other beneficiary transactions
  • Claims and litigation
  • Personal and family maintenance
  • Benefits from Social Security, Medicare, Medicaid, or other governmental programs, or civil or military service
  • Retirement plan transactions
  • Tax matters

Some principals give their agents specific powers to give away their assets to reduce their taxable estate or qualify for governmental benefits such as Medicaid. In that case, they must expressly authorize their agent to have the power to:

  • Create, modify, revoke, or terminate a trust
  • Fund a trust with the principal’s property
  • Make or revoke a gift of the principal’s property
  • Disclaim or reject an interest in property on the principal’s behalf
  • Create or change survivorship interests in the principal’s property
  • Designate or change beneficiary designations on principal’s property
  • Make a loan to the agent

Or you can make a limited power of attorney in which you detail a specific task for your agent to handle.

What Is a Durable Power of Attorney in California?

A durable power of attorney is a power of attorney that remains in effect even if the principal becomes incapacitated. You must include language in your power of attorney to show it is durable, such as “This power of attorney will continue to be effective even though I become incapacitated.”

Generally, to determine incapacity, a licensed physician must make a formal assessment and determine that the principal is unable to manage their affairs.

When Is the Power of Attorney Effective?

It depends on how you create your power of attorney. You can specify that your power of attorney is effective once signed. Or you can designate a time or event when your power of attorney is active, called a “springing power of attorney.” For example, you may have your power of attorney start when you are incapacitated or for a specific time, such as when traveling out of the country.

When Does the Power of Attorney End?

A power of attorney ends upon the death of the principal or if one of the following happens:

  • The principal is incapacitated, and the power of attorney is not durable
  • The agent dies or is incapacitated, and there is no backup or successor agent
  • There is a termination date or event, and the date or event occurs
  • If the agent is a spouse and there is a divorce or legal separation

A court can also order the termination of a power of attorney and appoint a conservator.

Does California Have a Statutory Power of Attorney?

Yes, under California probate code §4401, there is a statutory power of attorney form. However, you can use something other than the statutory form as it is limited and sometimes confusing. You can either create your own power of attorney document customized to your needs or hire an estate planning attorney.

Can I Make My Own Power of Attorney in California?

Yes. California does not require you to use their statutory power of attorney form. You can use an online estate planning POA form to draft a power of attorney complying with California law. This a good self-help option to save time and money. However, if you have questions about your power of attorney or who you should choose as your agent, you may want to contact an estate planning attorney for legal advice.

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How Do I Make My Power of Attorney Valid in California?

You must sign your power of attorney in front of two witnesses or in front of a notary public. Your witnesses must not be named as agents in your power of attorney or related by blood or marriage. The advantage of a notary public is that if someone questions your power of attorney, your agent does not have to find the witnesses to testify they saw you sign your document.

Do I Have to Notarize My Power of Attorney?

No, in California, you can have two witnesses who either see you sign your document, or have you state to them that it is your signature on the document. Your witnesses cannot be related to you by blood or marriage or be named an agent in your power of attorney. Therefore, using an impartial notary public to acknowledge your signature may be easier.

What Should I Do After Signing My Power of Attorney?

Once you sign your power of attorney, you should provide the original to your agent and copies to your banks or financial institutions. The banks may have their own forms or require an agent certification form. An agent certification form is one your agent completes under oath, swearing that your power of attorney is effective and that they have the authority to act.

Does a Power of Attorney Agent Get Paid in California?

In California, your agent is entitled to reimbursement of reasonable expenses for serving as your agent. However, they may only receive compensation for their time if you specify in your power of attorney.

Is My California Power of Attorney Valid in Another State?

Yes. A power of attorney created and signed according to the California laws will be honored in another state.

Can I Revoke My California Power of Attorney?

Yes. As long as you are mentally competent at the time, you may revoke your power of attorney. To revoke a power of attorney, you make a written statement called a “Revocation of Power of Attorney,” revoking your power of attorney and your agent’s authority. Sign your document before a notary and distribute copies to your agent and to all banks and financial institutions with your initial power of attorney.

What Estate Planning Documents Should I Have in California?

A financial power of attorney is important to help you and your family avoid conservatorship if you are suddenly incapacitated and can’t handle your affairs. You can decide what powers to grant, who is in charge, and when the power of attorney begins and ends. However, it is not the only document to have. For a complete estate plan, you should have a health care directive and last will and testament.

An advance health care directive serves as a medical power of attorney and a living will. You can name someone to access your medical records, talk to healthcare providers, and make healthcare decisions on your behalf. You can also leave instructions on what medical treatments or life-prolonging measures you want when you have an end-stage illness or terminal condition.

A last will and testament is a document used at your death. You name who you want to manage your estate, who you want to inherit your property, and who should care for your minor children and pets. Having a will streamlines the probate process, saving your loved ones time and money in court.

Fortunately, making a valid California power of attorney and creating other estate planning documents is easy with online estate planning templates.

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