Power Of Attorney

Although this blog is focused primarily on matters of interest involving California probate, there are related topics worthy of discussion.

For example, while probate is the California court’s supervision over the transfer of property from the deceased person’s estate to the rightful heirs or beneficiaries, when that person is still alive he or she may not have the ability to make decisions about the property belonging to him or her. When we are alive but incapacitated (by a stroke, heart attack, auto accident, debilitating disease or some other reason), someone ought to be given the power to make decisions regarding our property when we are not able to make those decisions ourselves.

In those instances, a durable power of attorney for property management and financial affairs is useful. That type of California document “endures” our incapacity and continues to remain in effect. The person named in the durable power of attorney – the attorney in fact – steps into our shoes and is empowered to make decisions regarding our property.

There are basically two types of California durable powers of attorney. One becomes effective immediately upon being signed. In that case, the attorney in fact may exercise his or her powers even when we may still be competent. So, when using this type of power of attorney, be sure to give the power to someone who will not misuse it.

The second type of durable power of attorney becomes effective upon our becoming incapacitated. The power “springs” up when and as needed. The primary draw-back to a “springing durable power of attorney” is the common requirement that the attorney in fact must also present notes from two physicians declaring our incompetency. Getting those type of notes may be a challenge which could render the durable power of attorney ineffective.

Here’s a sample free form.

For more information, call a California attorney. Call Mitchell A. Port at (310) 559-5259.