1. What is a power of attorney? (Top)

A document in which a person (the "principal") designates an agent (the "attorney-in-fact") to act on his or her behalf in one or more matters, typically financial.

2. Why should I have a power of attorney? (Top)

If you were to ever become incapacitated (See California Probate Code §812) and thereby unable to manage your finances, somebody would need to step in to take over your financial matters. Unfortunately, your creditors will not just decide to excuse your financial obligations should you become incapacitated. Fortunately, a durable power of attorney fills this gap by having an agent ready to take over your financial matters should you ever become incapacitated.

Conversely, should you lack an agent and become incapacitated, a court will appoint a conservator to serve on your behalf. These proceedings are costly, lengthy and avoidable if a power of attorney is properly executed.

3. What is a conservator and what do they do? (Top)

In a conservatorship of the estate, a court-appointed conservator manages the financial affairs of a person who is substantially unable to manage his or her own financial resources or to resist fraud or undue influence. California Probate Code §1801(b).

The conservator of the person has the "care, custody, and control of" the conservatee. California Probate Code §2351.

4. Who may serve as my agent? (Top)

Any person you feel comfortable with having power over your checkbook. Most couples pick each other as their agent.

5. How can I execute a durable power of attorney? (Top)

You can either have an attorney draft a durable power of attorney for you or you can copy, paste and print the uniform statutory form yourself. See California Probate Code §4401.

Of note, I have seen the uniform statutory form, copied verbatim from California Probate Code §4401, on sale at office supply stores such as Office Max and Staples for $8. Let’s just say that is an unwise purchase.

Furthermore, to be effective in California, the power of attorney must be acknowledged before a notary or signed by at least two witnesses. California Probate Code §4121.

6. When does a power of attorney become effective? (Top)

The power of attorney may take effect immediately on execution, or it may be a "springing" power of attorney that becomes effective only on the occurrence of a particular event, typically the principal’s incapacity.

7. Can I limit the power of attorney to certain transactions? (Top)

Yes, you may limit the extent of the agent’s authority. For example, an agent can perform the following acts only if expressly authorized in the power of attorney:

(1) Create, modify, or revoke a trust;

(2) Fund with the principal's property a trust not created by the principal or a person authorized to create a trust on behalf of the principal;

(3). Make or revoke a gift of the principal's property;

(4). Exercise the right to make a disclaimer on behalf of the principal (an agent may still disclaim a detrimental transfer to the principal with court approval even without specific authorization);

(5). Create or change survivorship interests in the principal's property or in property in which the principal may have an interest or;

(6). Designate or change the designation of beneficiaries to receive any property, benefit, or contract right on the principal's death; or vii. Make a loan to the agent.

California Probate Code §4264

8. I have more power of attorney questions how can they be answered? (Top)

Please call my office at (408) 866-8382 or email me at s.miri(a)mirilaw.com