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A power of attorney is a written document that authorizes another person to act on your behalf. There are several different names for powers of attorney. Typically, there are two major categories: one that takes effect immediately, and another that would take effect only after a certain event, such as incapacity. The power of attorney itself describes what powers are conveyed on the representative. These powers could be for one specific real estate or business transaction, or for a variety of matters.
I believe that no estate plan is complete without having a durable power of attorney that becomes effective upon the incapacity of an individual. Everyone needs a power of attorney. Even young people are not immune to accidents which could leave them incapacitated and unable to pay their bills, operate their businesses, or keep their houses out of foreclosure.
The main difference between a power of attorney and a conservatorship is that the latter is supervised by a court. A conservator petitions the court for certain powers. When a conservator is appointed by a court, that conservator has specific powers. A conservatorship may be for the person, the estate, or both; it will depend on which powers are granted by the court. A power of attorney is a document that would be used to confer specific powers on an individual. A power of attorney for assets could be a general power that is very broad, or it could be very narrow without court supervision on the powers of attorney.
A medical power of attorney in California is now called an advance healthcare directive. It is a form that appoints an individual and quite possibly successor individuals to manage your healthcare, either immediately or upon incapacitation. Most advance healthcare directives also contain a nomination of a conservator person should the advance healthcare directive be found insufficient to manage your healthcare decisions. Generally, an advance healthcare directive gives or prohibits the right of healthcare providers and institutions to provide medical and diagnostic tests, surgical procedures, medication, and artificial nutrition and hydration. In addition, it will contain end-of-life choices such as whether or not to “pull the plug” in the event that you are brain dead or at a point where that quality of life is no longer viable. It also gives the right to inspect and disclose healthcare information regarding physical and mental health, to sign documents, releases, and waivers on your behalf, and to determine whether or not visitation is in your best interest. In addition, it gives or prohibits permission to carry out a post-death donation of organs, addresses the disposition of remains, and whether or not the agent is granted powers to authorize an autopsy. There are certain cases where an autopsy won’t be performed because an individual doesn’t have the right to order an autopsy. Advance healthcare directives are very lengthy and encompassing documents that cover all aspects of your healthcare from the present to the end of your life.
A power of attorney for a California resident should be prepared by a California attorney and executed and notarized by a notary in California. This would avoid any questions of validity because a person might challenge or reject a power of attorney if it was not prepared in the state where the individual lives.
A power of attorney takes effect when the power of attorney itself states that it takes effect. The power of attorney can take effect immediately or begin and end on a specific date. It could be a durable power of attorney that could last forever, or it could be one that only takes effect upon incapacity, in which case the document itself would have the requirements to determine if that incapacity requirement is met. Oftentimes, a power of attorney in California will require signatures or letters from two licensed physicians in the state of California who agree that incapacitation requirements have been met.
A power of attorney must be signed, have a date, and be notarized. In addition, it must clearly state who the power of attorney is and must specifically name who the principal is. If a power of attorney in California is not prepared by an attorney, then the document itself must contain some warnings related to that fact.
For more information on Powers Of Attorney In California, a consultation with an experienced California Will Lawyer is your next best step. Get the information and legal answers you are seeking by calling (916) 685-7878 or by filling out our convenient online contact form today.
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