if you are seeking to be an “agent,” the person receiving authority from the “principal,” the person giving their authority to the agent, talk to the principal regarding your motives and intentions. [1] X Research source
In this situation, you will need to seek conservatorship over the incapacitated individual.
A durable power of attorney survives even if the principal becomes incapacitated. [7] X Research source In California, in order to create a durable power of attorney, you must include the following language: “This Power of Attorney shall not be affected by subsequent incapacity of the principal”; or “This Power of Attorney shall become effective upon the incapacity of the principal”; or Any other language that shows you want the power of attorney to remain in effect even if the principal becomes incapacitated. [8] X Research source A durable power of attorney can become effective whenever the principal so chooses. You can make it go into effect immediately or you can choose a time to make the power of attorney effective. [9] X Research source A durable power of attorney terminates upon the death of the principal, or when the principal cancels it. Under California law, unless a durable power of attorney is explicitly revoked or has specific termination language, it remains valid until the death of the principal.
A general power of attorney can become effective whenever the principal so chooses. You can make it go into effect immediately or you can choose a time to make the power of attorney effective. [11] X Research source A general power of attorney can be terminated at any time, which might include a specific date, after the completion of a specific task, or whenever the principal chooses to cancel the agreement. [12] X Research source
When the authorized activity is complete, or on a certain date, the power of attorney expires and becomes void. [13] X Research source A specific type of limited power of attorney is used by the California State Franchise Tax Board to allow your tax preparer to talk with the state on your behalf. [14] X Research source
The American Bar Association has a multi-state form package that includes instructions for California.
For example, if the agent does not live near you, it may be difficult for that person to have the required relationship with your banks or your doctors.
For example, some people may not believe in keeping an individual on life support for an extended period of time (for religious or personal reasons), while others may believe in doing so. Whatever your beliefs, choose someone that thinks similarly to you.
If you designate more than one person to act as an agent, you will need to designate the way in which decisions will be made. If you want each agent to be able to act on their own, simply state that the agents can act separately. If you want all of your agents to act together, state that the agents must act jointly.
Using the California Probate Code form, you can grant powers by simply initialing next to the powers already laid out. In order to withhold powers, simply avoid initialing next to that power. The subjects included in the form are: real property transactions; tangible personal property transactions; stock 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; and tax matters. In the health care form, the agent will be authorized to make all health care decisions unless exceptions are explicitly provided. With the different types of powers of attorney in mind, you need to determine exactly what needs to be accomplished. Durable powers of attorney are often appropriate for long-term care of someone experiencing serious medical issues who is in danger of becoming incapacitated. Durable powers of attorney are also often granted to trust administrators and conservators so the trustee can manage the estate without having to seek signatures on every document. For most other situations, a general or limited power of attorney will suffice. Even if the power of attorney will be valid for a long period, such as a period of incarceration or until a child turns 18, you should only take or delegate as much authority as necessary.
For example, if you do not wish to allow the agent to make real property decisions, including the purchase and sale of real property, explicitly state this in your power of attorney. Also, there are some issues that cannot be legally included in a power of attorney. For example, in California, an agent cannot make or change the principal’s will. [16] X Research source
While either method of validation will work, consider doing both. By signing in front of a notary, you expel any doubt as to the validity of the principal’s signature. Also, by having two witnesses sign the power of attorney, you are also creating parties who can testify as to the validity of the document.
The principal can terminate the power of attorney at any time either in writing or by executing a new power of attorney with a different agent. California state law explicitly states that, “If a principal grants inconsistent authority to one or more attorneys-in-fact in two or more powers of attorney, the authority granted last controls to the extent of the inconsistency. "
