Many people are aware of the importance of wills and trusts in the context of Estate Planning; however, an often overlooked document is the Power of Attorney. A Power of Attorney or “POA” is especially important in the context of incapacity planning. In California, the legislature has created standard forms to be completed to clarify the process of creating a POA.

There are two different types, springing power of attorney and durable power of attorney. The difference between these two is significant.  A durable power of attorney becomes effective upon signing and remains effective during the subsequent incapacity of the principal. A springing power of attorney only takes effect after incapacity. Powers of Attorney can be broad or limited in scope, for example if you will be out of the country and require someone to execute documents for a pending real estate transaction, you may wish to have a very limited power of attorney. 

Section 4000 of the California Probate Code governs Powers of Attorney. Section 4121 sets out the legal requirements for a POA:

California Probate Code Section 4121. A power of attorney is legally sufficient if all of the following requirements are satisfied:

(a) The power of attorney contains the date of its execution.

(b) The power of attorney is signed either (1) by the principal or (2) in the principal’s name by another adult in the principal’s presence and at the principal’s direction.

(c) The power of attorney is either (1) acknowledged before a notary public or (2) signed by at least two witnesses who satisfy the requirements of Section 4122.

(Amended by Stats. 1999, Ch. 658, Sec. 29. Effective January 1, 2000. Operative July 1, 2000, by Sec. 43 of Ch. 658.)

A Power of Attorney is an important Estate Planning Document and can be very helpful to ensure your wishes are followed in the event of incapacity. 

Contact Kushner Legal today to schedule a consultation.