If you want someone to be able to represent your interests in a financial, business, family, or health related matter or transaction, a power of attorney serves the purpose of legalizing the transfer of authority from you to the agent on whom the power is conferred. This article provides an overview of the requirements for creating a power of attorney, the circumstances in which it is normally utilized, and the procedure for revoking the agent’s authority to act on behalf of the principal.
What is a Power of Attorney?
A Power of Attorney (POA) is a legal document authorizing a person to act on behalf of another. It gives one or more specified individuals the right to act as a legal representative in designated ways, and grants them the authority to say and do things on another person’s behalf.
There are different types of POAs. For example, a general POA permits the agent to transact any or all business for the principal. A Limited (or Special) POA is used to allow an agent to perform specific tasks. The limitations set in place for an agent depend entirely upon the specific wording of the document that grants them such powers. You may, for example, only grant the agent the power to handle your retirement accounts, and only for a set amount of time between two determined dates. Or you may give him or her the authority to make medical decisions in your name, but not financial ones (and vice versa).
There are also durable POAs, which typically provide for the agent’s continued authority to act on behalf of the principal after the latter becomes incapacitated, whether due to unconsciousness, mental illness, injury or other factors. As with any other type of POA, you must include language in the document that specifically makes it durable to ensure proper authorization of your chosen agent to continue operating on your behalf.
Some examples of what your agent might be able to do under a POA include managing your bills, selling your real estate, signing checks in your name, handling stocks and investment transactions, and making medical decisions on your behalf
Legal Requirements for Creating a Power of Attorney
California requires that the person making a power of attorney have a certain mental capacity, called the “capacity to contract.” At a minimum, this means that the person can manage his financial affairs and resist fraud or undue influence. (See Cal. Civ. Code § 39(b).)
Procedurally, to make a POA in California, you must sign your POA in the presence of a notary public if you used a statutory form. If you didn’t use a statutory form, you can either have the document notarized or sign it in the presence of two witnesses, or both. (Cal. Prob. Code §§ 4121(c) and 4122.)
Can a Power of Attorney be Revoked?
A power of attorney can be revoked by the principal at any time, for any reason as long as the principal has the necessary competence to do so. Revoking the POA requires an official statement of revocation that includes your name, the date, your statement, the date of the initial power of attorney document, your assigned agent, and your signature. You should distribute this revocation to your agent and anyone with whom they may have communicated.
Who Should I Choose to Act as My Power of Attorney?
Many people choose their spouse or other trusted loved ones or friends to act as their POA. Whoever you choose, you should obviously trust them with your important financial and legal affairs, and they should be organized, financially responsible, and otherwise willing and able to assume the duties the role requires.
California allows you to appoint co-agents who are authorized to act at the same time, but it’s usually advisable to stick to just one agent to minimize potential conflicts. The POA can also designate a “successor” agent—someone who will become your agent if your first choice is unavailable or unwilling to act for any reason.
As legal document preparers, Lynx has extensive experience preparing POAs and related legal documents. Using our services will save you thousands of dollars in attorney’s fees you otherwise would have spent to complete the task. Please contact us at 888-441-2355 or [email protected] with any questions or if you would like to start a work order.