Part of estate planning and writing your will is determining how to best protect your interests and desires if you are incapable of doing so. Many people choose to establish an individual with the powers of attorney over their welfare. But who exactly can have power of attorney?
In California, any natural person having the capacity to contract can execute the power of attorney. The individual granted with power of attorney becomes the agent. A power of attorney is legally sufficient if all three requirements are satisfied:
- The power of attorney contains the date of execution
- The power of attorney is either signed by the principal, or in the principal’s name by another adult in the principal’s presence and at the principal’s direction
- The power of attorney is either acknowledged before a notary public or signed by at least two witnesses who satisfy certain requirements
Witnesses are required to be adults and cannot be the agent. Each person must witness the principal signing the power of attorney or the principal’s acknowledgement of the signature or the power of attorney.
What does power of attorney grant?
In California, you can name either a general power of attorney or a durable power of attorney. A general power of attorney can make a number of legal decisions, with the exception of healthcare decisions. The power ends when a person becomes mentally incapable to handle his or her own affairs.
A durable power of attorney, however, becomes effective upon the incapacity of the principal. All acts during the period of incapacity have the same effect as if the principal had capacity. The agent can manage, dispense of, sell and convey your real and personal property, and can borrow money on your behalf. They can also make decisions related to your care, treatment and whether or not to continue your life support.
Your agent has a legal duty to act solely in the interest of the principal, avoid conflicts of interest and to keep the principal’s property separate and distinct from their own. If you have indicated your wishes in a living will, the agent must honor them.
You have the right to revoke or terminate the durable power of attorney at any time as long as you are competent. The only way to change the durable power of attorney is to execute a new durable power of attorney, or by executing an amendment.
California laws regarding powers of attorney are regularly changing. An estate planning attorney can walk you through the legal options for naming an agent and how new laws and rules affect your plan so you can make the best choices for you and your wishes at the end of your life.