Nearly every day in our office a potential client will call to inquire about obtaining a power of attorney for a loved one. First, we must understand what a power of attorney is, and what it can do, and not do – as the case may be.
A power of attorney is a legal device that authorizes one person to perform legal acts (such as signing a consent to medical treatment) on behalf of another person. The person who grants the authority is known as the principal, and the person who exercises it is known as the agent or attorney-in-fact. California power of attorney laws are located within the California Probate Code.
In order to execute a power of attorney, you must have the legal ability to enter a contract, meaning that you must be mentally competent and at least 18 years old. Most attorney’s will not draft a power of attorney without meeting with the principal. If the principal failed to execute a power of attorney before losing capacity (due to dementia, etc) then other legal remedies must be pursued such as conservatorship. It cannot be stressed enough that a power of attorney can only be entered into by the principal with legal capacity. It should go without saying, that once the principal passes away so do the powers conferred under the power of attorney.
There are two main types of powers of attorney:
- A general power of attorney which governs all powers covered by a power of attorney (like buying or selling property or otherwise managing one’s assets). However, the specific language of a power granted will depend on the document. The powers in a power of attorney are specific especially when custom drafted (which they ideally should be). The agent needs to check the power of attorney document to see if the necessary powers have been granted.
- A limited or special power of attorney which refers to less than all powers. For example, a power of attorney could be drafted which only grants the power to conduct a real estate sale for the title of one property.
Although not generally powers of attorney, most people associate the following with powers of attorney documents:
- Health Care Advanced Directive (HCAD) allows an agent to make medical decisions for the principal. This document is meant to give guidance for the principal’s health care (about the principal’s wishes to remain on or off life support, for example).
- A Physician’s Order Regarding Life Sustaining Treatment (POLST) is not a power of attorney. This document is a directive for first responders and doctors who need to know the principal’s resuscitation wishes in an emergency situation.
Power of attorney documents should not be entered into lightly. The principal should choose a person that they trust. On the other hand, anyone that is acting in the role of attorney-in-fact must do so with the upmost integrity to the principal. The law considers the principal/agent relationship as a fiduciary relationship and the agent owes a fiduciary duty to the principal by virtue of the relationship. Take note, that it’s important that people understand that this fiduciary obligation is not generally stated in the power of attorney, and it doesn’t need to be because it is implied by law.
Any and all actions taken by the agent/attorney-in-fact must be accounted for and in the best interest of the principal.
If you are considering executing a power of attorney, the principal should contact a local attorney to discuss the available options. Generally, a power of attorney is included within the estate planning process.
27851 Bradley Rd, Ste 145
Menifee, Ca 92586