A power of attorney allows a trusted person to step in and manage important matters when it matters most. Whether you are making a power of attorney or agreeing to serve as an agent, knowing the rules helps ensure the document is valid, enforceable and truly protects the person it is designed to serve.
Being granted power of attorney is a significant responsibility, but it can be deeply meaningful for everyone involved when the agent complies with California POA laws, fulfills their fiduciary duties and consistently acts in the best interests of the principal. The principal is the person who grants authority, while the agent is the person who receives it.
Many people create powers of attorney as part of their estate plan to designate a trusted individual to make important decisions on their behalf if they lose mental capacity. Others establish a POA as a precaution to ensure they have a say in who will act for them rather than leaving the decision to a court-appointed conservator.
It is common for loved ones of elderly adults or individuals experiencing cognitive decline to ask about “obtaining” a power of attorney. However, powers of attorney cannot be imposed; they must be voluntarily granted by the principal while they have capacity.
For example, if you wish to obtain a POA over an elderly parent, you cannot simply create one on their behalf. Your parent must voluntarily confer the authority themselves while they are still mentally competent. You can gently encourage them to do so, but it is crucial never to coerce or pressure them, as undue influence can render a POA document invalid.
Whether you are making a power of attorney for yourself or helping a loved one consider one, it is important to understand how the process works, what factors to consider beforehand and what to do if disputes arise.
What Is a Power of Attorney?
A power of attorney is a legal document that authorizes a designated individual — known as the agent or attorney-in-fact — to act on behalf of another person — called the principal — in specified financial, legal or medical matters.
What Is the Purpose of a Power of Attorney?
Powers of attorney serve a wide range of purposes, as they can be tailored to meet the principal’s unique needs and circumstances.
Although powers of attorney may be used for matters ranging from child care to tax representation, this article focuses primarily on financial powers of attorney (often referred to as general POAs) and medical powers of attorney (commonly called health care POAs), as these are the most frequently used tools in incapacity planning.
The sections below outline the reasons financial and medical powers of attorney are often established. However, because POAs are highly customizable, the authority granted may be broader or more limited depending on how the document is drafted.
Financial POAs are generally used to:
| Medical POAs are generally used to: |
Authorize an agent to manage bank accounts, pay bills and deposit checks | Authorize an agent an agent to ensure medical treatment aligns with the principal’s wishes |
Authorize an agent to manage investments, including stocks and bonds, retirement accounts and property | Authorize an agent to manage medical decisions |
Authorize an agent to manage the principal’s business matters, including signing contracts | Authorize an agent to provide consent for or refuse treatment |
Authorize an agent to prepare and file the principal’s taxes, including handling issues with the IRS | Authorize an agent to access the principal’s medical records and information
|
Authorize an agent to litigate on the principal’s behalf as appropriate | Authorize an agent to manage the principal’s medications, medical providers and healthcare facilities |
Authorize an agent to use the principal’s funds for their health care | Authorize an agent to consent to life-sustaining care, such as feeding tubes and ventilators |
To ensure a power of attorney serves its intended purpose, the document must clearly define the authority granted to the agent and any limitations on that authority. Ambiguity can create confusion, disputes, or even personal liability. Agents should fully understand the scope of their powers and seek clarification from the principal or an attorney if there is any uncertainty about what they can and cannot do.
Who Can Make a Power of Attorney?
Only an individual with mental capacity who is acting voluntarily may create a power of attorney. In California, no one may obtain a POA on another person’s behalf, nor may they coerce or pressure someone into signing one.
To have the required mental capacity, the individual must understand the nature and consequences of signing the document at the time it is executed. This includes understanding what the document is, the authority being granted, and how that authority may affect them and others.
If a person is already incapacitated, they cannot legally create a power of attorney. In this situation, a loved one may need to petition the court to obtain a conservatorship.
Who Can Have Power of Attorney?
A power of attorney may generally be granted to any trustworthy adult who is of sound mind and capable of acting in the principal’s best interests.
According to California power of attorney laws, to serve as an agent, an individual must:
- Be at least 18 years old;
- Have the legal capacity to contract; and
- Understand and accept their fiduciary duty to act in the principal’s best interests.
California typically prohibits owners, operators and employees of healthcare institutions or residential facilities where the principal is receiving care from serving as agents. However, exceptions may apply if the individual is related to the principal by blood, marriage or adoption, or is a co-worker.
Unlike some states, California does not automatically disqualify individuals with criminal convictions from serving as agents. However, a conviction — particularly for a financial crime such as fraud — may lead to increased scrutiny or practical challenges when exercising authority. For this reason, principals should select their agent carefully.
Please note: Although agents are often referred to as “attorneys-in-fact,” they do not need to be lawyers. An attorney-in-fact is distinct from an attorney-at-law and may be any competent adult who meets the legal requirements to serve.
Do You Need a Lawyer to Get Power of Attorney in California?
You do not need a lawyer to create a power of attorney in California. You can prepare and execute a POA on your own using forms available online. However, proper execution is critical.
When a POA is improperly executed, it may be rejected by banks, medical providers or other institutions.
You can access California POA forms here:
If you complete a durable power of attorney without an attorney, California POA laws require that specific mandatory notices to the principal and agent appear at the beginning of the document. These warnings must be acknowledged to ensure both parties understand the authority being granted and the legal consequences of signing.
The mandatory notices, which must appear in at least than 10-point boldface type, are as follows:
Notice to Person Executing Durable Power of Attorney
A durable power of attorney is an important legal document. By signing the durable power of attorney, you are authorizing another person to act for you, the principal. Before you sign this durable power of attorney, you should know these important facts:
Your agent (attorney-in-fact) has no duty to act unless you and your agent agree otherwise in writing.
This document gives your agent the powers to manage, dispose of, sell, and convey your real and personal property, and to use your property as security if your agent borrows money on your behalf. This document does not give your agent the power to accept or receive any of your property, in trust or otherwise, as a gift, unless you specifically authorize the agent to accept or receive a gift.
Your agent will have the right to receive reasonable payment for services provided under this durable power of attorney unless you provide otherwise in this power of attorney.
The powers you give your agent will continue to exist for your entire lifetime, unless you state that the durable power of attorney will last for a shorter period of time or unless you otherwise terminate the durable power of attorney. The powers you give your agent in this durable power of attorney will continue to exist even if you can no longer make your own decisions respecting the management of your property.
You can amend or change this durable power of attorney only by executing a new durable power of attorney or by executing an amendment through the same formalities as an original. You have the right to revoke or terminate this durable power of attorney at any time, so long as you are competent.
This durable power of attorney must be dated and must be acknowledged before a notary public or signed by two witnesses. If it is signed by two witnesses, they must witness either (1) the signing of the power of attorney or (2) the principal’s signing or acknowledgment of his or her signature. A durable power of attorney that may affect real property should be acknowledged before a notary public so that it may easily be recorded.
You should read this durable power of attorney carefully. When effective, this durable power of attorney will give your agent the right to deal with property that you now have or might acquire in the future. The durable power of attorney is important to you. If you do not understand the durable power of attorney, or any provision of it, then you should obtain the assistance of an attorney or other qualified person.
Notice to Person Accepting the Appointment as Attorney-in-Fact
By acting or agreeing to act as the agent (attorney-in-fact) under this power of attorney you assume the fiduciary and other legal responsibilities of an agent. These responsibilities include:
- The legal duty to act solely in the interest of the principal and to avoid conflicts of interest.
- The legal duty to keep the principal’s property separate and distinct from any other property owned or controlled by you.
You may not transfer the principal’s property to yourself without full and adequate consideration or accept a gift of the principal’s property unless this power of attorney specifically authorizes you to transfer property to yourself or accept a gift of the principal’s property. If you transfer the principal’s property to yourself without specific authorization in the power of attorney, you may be prosecuted for fraud and/or embezzlement. If the principal is 65 years of age or older at the time that the property is transferred to you without authority, you may also be prosecuted for elder abuse under Penal Code Section 368. In addition to criminal prosecution, you may also be sued in civil court.
I have read the foregoing notice and I understand the legal and fiduciary duties that I assume by acting or agreeing to act as the agent (attorney-in-fact) under the terms of this power of attorney.
Date:
_____
(Signature of agent)
_____
(Print name of agent)
What Are the Steps to Get Power of Attorney?
You cannot “get” power of attorney over someone else — it must be voluntarily granted by a person with legal capacity. Below are the general steps for creating a valid POA in California.
1. Confirm Mental Capacity
The person creating the POA must have mental capacity at the time of signing. A POA executed while the principal is incapacitated may later be challenged and declared invalid.
If there is any concern about capacity, especially where medical conditions or diagnoses could raise questions, consulting a physician before signing can help reduce the risk of future disputes.
Once a principal loses capacity, they can no longer create, modify or revoke a POA.
2. Determine Type and Scope
Powers of attorney vary widely in both type and scope. Before drafting the document, you should carefully consider what authority you want to grant, when that authority should begin and how long it should last.
The most common types of POAs include:
- Financial POAs: Authorizes an agent to manage financial and legal matters
- Medical POAs: Authorizes an agent to make health care decisions
- Durable POAs: Remains effective even if the principal becomes incapacitated
- Nondurable POAs: Terminates upon the principal’s incapacity
- Springing POAs: Becomes effective only after incapacity is confirmed
- Limited/Special POAs: Grants authority for a specific task or timeframe
For powers of attorney created for incapacity planning, it is recommended that they be durable. This ensures the agent can immediately act on the principal’s behalf if incapacity occurs suddenly. General POAs are not automatically durable, so be sure to explicitly designate them as such if your intention is for the POA to remain effective during incapacity.
Although you can make decisions about the type of POA you want and its scope independently, an attorney can help ensure the authority granted is clear, enforceable and tailored to your needs.
3. Obtain and Prepare California POA Forms
You can proceed with drafting the power of attorney once you’ve selected your agent. While standard forms are generally straightforward, it is important to carefully review all provisions and understand the authority you are granting.
You may be able to add specific powers not listed in a standard form, but those powers must be legally permissible. For example, even if a document authorizes an agent to make, amend or revoke a will, California law does not allow an agent to take these actions.
If you’d rather draft your own power of attorney, you may do so. However, it is important to be aware of California’s POA requirements and create your document accordingly.
If you are not working with a lawyer to draft your POA, it is a good idea to have one review it. Consulting a qualified attorney can help prevent future problems.
As noted earlier, if you are preparing a durable POA without legal assistance, the law requires you to include mandatory notices to the principal and agent, and for those parties to acknowledge them.
4. Execute the POA
After drafting and reviewing the power of attorney, it must be properly executed.
To execute a valid POA in California, it must be:
- Signed and dated by the principal
- Signed by two qualified witnesses or acknowledged before a notary public
Witnesses must meet the following qualifications:
- Be at least 18 years old
- Not named as the agent
- Not a healthcare provider or facility employee (for Advance Health Care Directives)
Although a beneficiary may legally serve as a witness in some circumstances, it is generally advisable to use fully disinterested witnesses. Third-party institutions may scrutinize or reject a POA if there is any appearance of undue influence.
5. Store, Copy and Distribute the POA
Once the power of attorney has been properly executed, you should make several copies and store the original in a secure but accessible location. Copies should be provided to your agent and delivered to any relevant institutions, such as banks, investment firms or healthcare providers, that may need to rely on the document.
Distributing copies in advance can help prevent delays or rejected transactions when the agent needs to act on your behalf.
If the POA is effective immediately, the agent may begin exercising their authority as soon as the document is signed. For that reason, ongoing oversight is important. A principal should periodically review the agent’s actions and request records when appropriate to ensure the authority granted is being exercised responsibly and in accordance with the principal’s wishes.
What Can Go Wrong with a Power of Attorney?
Even if a power of attorney is properly executed, issues can arise. An agent might misuse their authority for personal gain, or the POA itself could be invalid if the principal lacked capacity at the time of signing.
When problems occur, it is crucial to work with a power of attorney lawyer to resolve them. While estate planning attorneys can help create a POA, a probate attorney is often the best professional to address disputes or complications that emerge after the document is executed.
Common Power of Attorney Disputes | How a Probate Lawyer Can Help |
Validity of the POA Is in Dispute Example: An agent coerced a principal into creating a POA. If the principal is now incapacitated and cannot revoke the document, a family member may wish to have it voided on their behalf on suspicion of undue influence. | A probate lawyer can contest or defend the POA and help hold the agent accountable, including unwinding any improper transactions or decisions made if the POA is ultimately invalidated. |
Principal’s Mental Capacity Is Being Questioned Example: An agent is granted authority under a springing power of attorney, which only becomes effective once the principal is formally declared incapacitated. Though the principal has not yet been declared incapacitated, they suffer from dementia and are struggling to make decisions on their own. | A probate lawyer can help confirm incapacity, allowing the agent to act legally, and address any subsequent challenges to the principal’s mental capacity. |
Agent Is Exceeding Granted Authority Example: An agent sold several of the principal’s real properties, even though the POA explicitly restricts this power. | A probate lawyer can help reverse unauthorized transactions and pursue compensatory damages to reimburse losses and punitive damages for intentional misconduct. |
Agent Is Engaging in Self-Dealing Example: An agent occasionally siphons money from the principal’s bank account for personal use. Over time, this results in tens of thousands of dollars lost. | A probate lawyer can pursue legal action to hold the agent accountable, seeking compensatory damages to reimburse losses and punitive damages as appropriate. |
Agent Is Mismanaging Assets Example: An agent neglects their fiduciary duty to act prudently and in the principal’s best interests by making risky or poorly researched investments that place the principal’s assets in jeopardy. | A probate lawyer can file claims for breaches of fiduciary duty and seek damages as appropriate. |
POA Is Insufficient in Protecting the Principal Example: A principal’s needs have grown beyond the scope of their POA. They don’t just require assistance managing medical decisions, but with their day-to-day care as well. | A probate lawyer can help establish a conservatorship by filing a petition with the court, providing a legal framework to meet the principal’s expanded needs. |
Many disputes involving POA abuse overlap with elder financial abuse, which can entitle the principal to enhanced damages. Lawyers can also sometimes recover attorney’s fees and court costs associated with resolving the dispute.
It is important to remember that only a principal with mental capacity can revoke a POA or directly take legal action against an agent. If the principal lacks capacity, a concerned party may petition the court to revoke the POA or pursue remedies on the principal’s behalf. In some cases, an authorized representative, such as a conservator, already has this authority, while others may need to request it from the court.
Obtaining Power of Attorney FAQs
Still have questions about how to make someone power of attorney? Explore the frequently asked questions below for additional guidance.
Can I prepare my own power of attorney?
Yes. You can prepare and execute a power of attorney without a lawyer. However, if you prepare a durable POA without a lawyer, you must include the warning notice required by California Probate Code section 4128, and both the principal and agent must sign it.
Even without an attorney, the POA must be signed before two qualified witnesses or a notary public to be valid.
Who can witness a power of attorney?
Witnesses must be at least 18 years old and mentally competent. Two witnesses are generally required, unless the POA is signed before a notary public.
For financial POAs, witnesses cannot be related to the principal by blood, marriage or adoption. For medical POAs, one witness may be related, but one must be completely disinterested — not a relative and not a beneficiary of the estate.
Witnesses for medical POAs also cannot be healthcare providers or employees of a healthcare facility unless they are a family member or co-worker of the principal.
Does a power of attorney need to be recorded in California?
No. POAs typically do not need to be recorded in California. The exception is when the POA involves real estate transactions — these must be recorded. If you later revoke a recorded POA, the revocation must also be recorded.
How do you activate a power of attorney?
POAs are generally “activated” based on their type.
- Durable POAs activate immediately upon execution and remain in effect until the principal’s death unless revoked.
- Nondurable POAs also activate immediately but become invalid if the principal loses capacity or dies.
- Springing POAs don’t activate until the principal is formally declared incapacitated by a physician.
Does power of attorney have to be notarized in California?
A power of attorney can be valid with the signatures of two qualified witnesses instead of notarization. However, notarizing a POA is recommended. If questions arise later about the principal’s capacity at the time of signing, a notary can provide additional evidence of authenticity.
What documents do I need to get power of attorney?
The documents you need to get a power of attorney are generally your state-specific POA forms, valid government-issued photo IDs for both the principal and agent, and signatures from either two qualified witnesses or a notary public.
How do I use a power of attorney?
An agent simply needs to present the original signed and notarized power of attorney document — or a certified copy — to financial institutions, healthcare providers or other third parties to authorize actions. They may need to present a valid government-issued ID as well.
When documents are signed on a principal’s behalf, the agent must print the principal’s name, as well as provide their own signature and title.
Here is a template:
[Principal’s Full Name] by [Agent’s Signature and Title]
E.g.: John Smith by Jane Smith, Attorney-in-Fact
How much does a power of attorney cost?
The cost of a power of attorney when prepared by a qualified attorney is generally around $350 to $500 in California, but the price can vary depending on the scope and complexity of the powers granted.
If you do it yourself, forms are generally available for free online, though some specialized forms may require a small fee.
While a do-it-yourself (DIY) power of attorney is cost-effective, involving a lawyer can help ensure your POA is legally enforceable, fully meets your needs and reduces the risk of future challenges.
Can a power of attorney be revoked?
Yes. A principal with mental capacity can revoke a POA at any time and for any reason.
If the principal lacks capacity, revocation requires court involvement. A conservator, relative or other interested party can file a petition to revoke the POA for valid reasons, such as POA misuse or mismanagement.
Who overrides a power of attorney?
Generally, only the principal can override a POA if they have capacity.
If they do not, an authorized representative (such as a conservator) or a loved one may petition the court to revoke the POA.
Keep in mind, however, that a POA cannot be altered, only revoked.
Does a power of attorney end at death?
Yes, a power of attorney ends at death. Once the principal dies, the agent must immediately stop acting, or they may be held personally liable for any actions taken after receiving notice of the principal’s death.
What is the difference between a power of attorney and conservatorship?
Although powers of attorney and conservatorships serve a similar purpose, a POA is created voluntarily by the principal while they still have capacity, while a conservatorship is established by the court after determining the individual lacks capacity to manage their personal and/or financial affairs.
Courts only get involved with POAs if disputes arise, but conservatorships are always court-supervised, with regular reporting required. Essentially, a POA allows the principal to decide who manages their affairs and how much authority they have, while a conservatorship transfers that decision-making to the court.
Conservatorships tend to be significantly more restrictive than POAs. This is why the court usually won’t grant a conservatorship if a POA that adequately protects the principal is already in place.
If a POA proves insufficient for the principal’s needs, a conservatorship may be necessary.
Who makes medical decisions without power of attorney?
Medical decisions are typically made by a “surrogate” — usually a spouse, adult children, parents, siblings or close friends — if a person has no POA.
If none of these individuals are available, California allows healthcare providers to select a reasonably appropriate adult, often based on who is familiar with the patient and has shown concern for their wellbeing.
Facing issues with a POA?
If you’re facing complications after a power of attorney has been created or stepping into your role as an agent, the probate attorneys at Keystone Law can help. Our team handles disputes involving invalid POAs, POA abuse and breaches of fiduciary duty. We also provide guidance and support to agents navigating their responsibilities. While we do not create POAs, we are here to assist once a POA is in place. Call us today to learn how we can help.
