Continuing our description of the California power of attorney, we have to talk a bit about the California Probate code and how it shapes the types of POA documents it affects.
California gives the specific language that must be used in a durable power of attorney document.
What laws apply to the durable power of attorney in California?
The power of attorney creation in California is described in probate code starting from Section 4000 to Section 4545, Division 4.5.
- The acknowledgment form that a notary must sign is in Section 4128.
- Section 4128 also includes the form to be used when someone accepts responsibility as an agent under a power of attorney.
- Section 4124 includes the statements that must be used in a durable POA form to be valid in California.
- Section 4401 of the California probate code contains an example of a durable power of attorney.
What are the probate code requirements for a durable power of attorney form?
- A durable power of attorney form in California must state the date of execution.
- A power of attorney is valid for the remainder of the principal’s life unless it includes an expiration date or specific duration.
- The full legal name and address of the principal and agent must be listed on the POA form.
- A notary should verify the identity of the principal and the agent before the document is signed.
- While the standard POA form only lists one agent, your document can list alternate agents as well.
- It must be signed by the principal, the person who is handing over the power or in the principal’s presence and at his or her direction. For example, someone who is of sound mind and can speak but cannot write due to a stroke or paralysis can request that someone else sign on his or her behalf.
- The California probate code requires the POA form to list separate types of authority the agent can hold.
Different individuals can be agents for different types of powers. For example, one person may be authorized to act as the principal’s agent in managing the family business while someone else handles personal and family maintenance. A third person could be appointed as an agent to handle trust and tax matters, such as an accountant. Or the durable power of attorney can authorize one person to handle all of these matters.
What does the durable power of attorney California probate code say about witnesses?
- The witnesses verify that the principal signed the document or that the person’s representative does so at the principal’s request.
- Witnesses must not be related by blood to the person creating and signing the form.
- Nor can they be related by marriage to the principle.
- Relatives by adoption are also excluded as witnesses.
- No one who inherits from the principle can be a witness.
- The attorney who drafted the POA form cannot be a witness.
- The same witnesses who sign off on a durable power of attorney form can also be witnesses on the medical power of attorney form, which must be separate from the medical POA in the state of California.
- While witnesses must be able to come to a California court to verify the validity of the document and that the principal signed it without duress, the witness does not have to reside in California.
- California prohibits anyone from being paid for the service of witnessing the POA form’s signing.