Powers of Attorney Basics
A power of attorney is where one person (known as the, “principal”) gives another person (known as the, “agent”) the power to do something on his or her behalf.
So, let’s say you are travelling and you want to give your sister the power to write checks from your bank account while you are gone. You, the principal, may execute a written power of attorney to your sister, the agent, to have access to your bank account while you are gone so she can write checks for your bills.
Powers of attorney can be general or limited, effective immediately or “springing” and durable or non-durable.
General versus Limited Powers of Attorney
General powers of attorney usually give broad powers to an agent, while a limited power of attorney is typically only for a certain specific things. For example, I give my agent the power to do anything I can do including buy or sell my real property would be considered a “general” power of attorney. Giving your agent only the power to access a single checking account would be considered a “limited” power of attorney.
Healthcare Powers of Attorney
In California, there are some special rules about healthcare powers of attorney, known here as an, “Advance Healthcare Directive”. Here you can appoint someone to act on your behalf to make decisions regarding your medical treatment up to, and including, removal from life support or withholding nutrition and/or hyrdration.
The agent under a healthcare power of attorney may also be able to take some actions immediately after death including organ donation, memorial services, disposition of remains, etc, etc.
Springing Power of Attorney:
A “Springing Power of Attorney” is one where the agent is not capable of acting until a certain event occurs, such as your incapacity. Until that event occurs, if ever, your agent does not have the power to act on your behalf. However, if this is what you want, make sure it is a “durable” power of attorney.
Durable Powers of Attorney
California law states that a power of attorney is automatically revoked when a person loses capacity. The idea is that if you are unable to revoke it, the state will do it for you.
However, there is a way to make it so that it remains effective despite your incapacity and that is by including what is referred to as a “durable provision”. A durable says that that despite your later incapacity your power of attorney remains effective. This will make your power of attorney, “durable”.
However, with very few exceptions, you should note that all powers of attorney are invalid once the principal (the person granting the powers) dies.
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