By GNGF on September 7th, 2021 in
What are the types of Power of Attorney? First, a power of attorney (POA) refers to a legal document, which gives someone, called an “agent” or “attorney-in-fact,” the ability to act on behalf of or make property decisions or personal affairs decisions for someone else, called the “principal.” A power of attorney must meet California’s legal requirements to be valid. California requires the POA to be dated, be signed by the principal or in the principal’s name by another adult in the principal’s presence and at the principal’s direction, and be either notarized or signed by at least two witnesses. The witnesses must be adults and the principal cannot be a witness. Each witness must then sign the power of attorney to confirm they witnessed the principal sign it, or the principal’s acknowledgement of the signature or the power of attorney. The principal must have the legal capacity to sign a POA for the document to be valid.
California generally recognizes four different types of power of attorney, which are:
General Power of Attorney
A general Power of Attorney provides the agent with specific powers over a principal’s real and personal property, and personal care.
This type of POA is best for someone who needs an agent to handle financial matters, as a general power of attorney is also commonly referred to as a “financial power of attorney.” While a general power of attorney gives the agent broad authority in various legal matters, this POA does not grant the ability to make any healthcare-related decisions.
Durable Power of Attorney
A durable Power of Attorney is referred to as “durable” because it continues to be valid even if the principal should become incapacitated through hospitalization, physically or mentally incapacitated.
Common language inserted into the power of attorney to make it durable includes phrases such as:
- “This power of attorney shall continue to be effective even though I become incapacitated;”
- “This power of attorney shall not be affected by the subsequent incapacity of the principal;” or
A durable power of attorney, is often used for elderly or ill individuals who are unable or may become unable to handle their affairs on their own. Commonly, family members or guardians may be given a durable power of attorney to handle the principal’s financial matters while they are mentally incapacitated as well as to make personal care decisions for the principal, such as where the principal will live, hiring household employees, providing transportation, handling mail, and arranging recreation and entertainment. Given that durable powers of attorney can only be created while the principal is still competent it is crucial to contact an experienced California attorney such as Mark Gullotta to ensure the document is well-drafted. This will protect the principal and his or her interests and make sure the POA sufficiently grants the agent necessary authority to act as it may not be possible to correct any deficiencies later.
Springing Power of Attorney
A springing Power of Attorney is referred to as “springing” because it only becomes effective after a specified event or contingency has occurred, such as if the principal becomes incapacitated through hospitalization, or is physically or mentally incapacitated.
Common language inserted into this type of power of attorney to make it durable includes phrases such as:
- “This power of attorney shall become effective upon the incapacity of the principal.”.
Limited Power of Attorney
A limited Power of Attorney generally only gives the agent authority to perform a specific transaction or duty. An attorney can carefully draft this document to allow the agent to act solely in specifically defined situations, such as a single real estate transaction. Other common uses of a limited power of attorney include when the principal will be out of the country and will need an agent to temporarily represent them in legal matters while the principal is away.
You should speak with a lawyer to discuss your specific needs and whether a limited power of attorney may be sufficient for your purposes and make sure it is tailored with appropriate limitations to safeguard your interests.
ADVANCE HEALTH CARE DIRECTIVE
An Advance Health Care Directive is a power of attorney for health care decisions. An AHCD gives the agent the ability to make all medical decisions for the principal. Unless it specifically states otherwise, an AHCD allows the agent to make these medical decisions, but only if the principal is incapacitated and unable to make the decisions personally, such as when the principal is unconscious or mentally incapacitated. Suppose the principal cannot make medical decisions personally or is unable to communicate the medical decision. In that case, the AHCD allows the agent, often a family member or guardian, to make those decisions on their behalf while being limited to these decisions, unlike the financial power of attorney which deals with the management of property and personal affairs. A skilled attorney can help you understand the differences between a financial power of attorney and an Advance Health Care Directive and which better fits your needs.
CONTACT THE LAW OFFICES OF MARK GULLOTTA
If you or a loved one requires any of these types of power of attorney, whether to allow an agent to handle legal or financial matters while you are away or to handle healthcare decisions should you become incapacitated, contact an experienced California lawyer who can help you choose the option that is right for you. Mark Gullotta has years of experience in assisting clients in understanding the multiple options concerning powers of attorney and can draft the option that fits your needs.