Power of Attorney in California: Guide and Requirements

A power of attorney, or POA, in California is a legal document that allows you (the “principal”) to appoint another person (called an “agent” or “attorney-in-fact”) to make medical or financial decisions on your behalf.

In order to create a power of attorney that’s valid in California, it must meet these basic requirements:

• You (the principal) must be at least 18 years old.

• You (the principal) must have mental capacity, which means you can fully understand your POA and its consequences.

• Your agent(s) must also be at least 18 years old and have mental capacity.

• Your POA needs to be signed in the presence of a notary public, or it needs to be signed by two competent witnesses ^[0]

  California State Legislature. California Probate Code. Accessed May 5, 2023.

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• If your POA gives your agent authority to take care of real estate transactions for you, you have to have the POA notarized.

• If you live in a nursing home and create a medical POA, it needs to be witnessed by an ombudsman or patient advocate (this is in addition to the notary or can count as one of your two witnesses).

» MORE: How to choose a health care proxy

There are a variety of options for a California power of attorney.

• Advance health care directive: This document is a combination of a classic medical POA, which allows your agent to make health care decisions on your behalf if you become unable to do so yourself, and a living will, which details your wishes and preferences regarding your medical treatment. You can’t use your agent, health care provider, health care provider’s employee, or anyone employed by a residential or community care facility as your witness.

• Financial POA: This type of POA gives your agent the power to take care of your business or financial affairs.

• Durable POA: If your power of attorney is durable, this means it remains effective even if you (the principal) become incapacitated and unable to make your own decisions. For a POA to be durable in California it needs to contain the words, “This power of attorney shall not be affected by subsequent incapacity of the principal,” or a similar statement ^[0]

  Orange County Superior Court. Power of Attorney. Accessed May 5, 2023.

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• General POA: This type of financial power of attorney gives your agent broad authority to manage your financial and business affairs (but not your medical affairs). Unless it is made durable, it terminates if you become incapacitated.

• Limited POA: This type of financial power of attorney gives your agent authority only over specific areas and/or only for a limited time period. For example, you might grant your agent the power to pay your bills while you’re traveling abroad, sell or buy a piece of real estate, or file your tax return for you.

• Vehicle POA: This type of limited financial POA allows your agent to represent you in all transactions involving the Department of Motor Vehicles.

• Springing POA: A springing power of attorney only becomes effective if and when specified conditions are met, such as the principal becoming incapacitated or a beneficiary coming of age. A medical POA is “springing” because it only activates if you can no longer make medical decisions for yourself.

» MORE: Will vs. trust: Cost, process and uses

Here’s what you need to do to create a valid power of attorney in California:

1. Decide which type of power of attorney you need for your situation.

2. Decide exactly which types of authority you’d like to grant your agent.

3. Choose an agent (or agents) that you trust.

4. Obtain the proper POA form from an estate planning attorney, through online estate planning software, or by downloading forms from the state, where available.

5. Fill out your form carefully and sign it in the presence of required witnesses or notary public.

6. Give a copy of the form to your agent.

7. If your POA involves real estate transactions, file a copy with your land records office. In California, this is called the Office of the County Clerk-Recorder ^[0]

   County of Santa Clara Office of the County Clerk-Record. In-Person Services. Accessed May 5, 2023.

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   . Additionally, consider giving a copy to your financial institutions or medical providers.

8. Store your POA in a safe place and update it as needed.

» MORE: Estate planning checklist: A 7-step guide