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Message # 667 What is power of attorney?

mp3 #667 What is a Power of Attorney? (mp3 file)


A Power of Attorney gives another person the power to act on your behalf if you cannot handle all or part of your affairs. It is a legal document which usually names your spouse, a relative or a friend as the person to act on your behalf. In spite of the name, the person given the "Power of Attorney" need not be an attorney. If you are the person giving the power, you are called the "principal." The person receiving the power is called an "attorney in fact." The power is revocable, that is, if you grant the power, you can take it away by signing another document called a "Revocation of Power of Attorney" and recording it if the Power of Attorney was recorded.

If you should give a Power of Attorney, it is not valid unless you are competent to understand what you are doing. The power can later be revoked on proof that you were incompetent at the time the instrument was executed. Otherwise, the power continues unless you revoke the powers, you become incompetent or until your death.

Although the law attempts to prevent the person to whom you give the Power of Attorney from using the power to benefit himself without your permission, there is no supervision over the person who has the Power of Attorney, and there are no provisions for automatic review. The acts may only be reviewed upon petition to the appropriate court. It is possible to put language into the Power of Attorney which will allow the Power of Attorney to continue even if you as principal become disabled or incompetent or prevent it from being operative until you are incompetent. This is called a Durable Power of Attorney. In that case, still no provision for supervision or automatic review. However, a court may be petitioned to review a Durable Power of Attorney after the disability or incompetence occurs. Caution should be exercised when giving a Power of Attorney to another since that person will have control, however limited, over your assets.

Two kinds of power can be given, whether or not the power given is durable.

Limited Power of Attorney

This power is usually for a specific act, for example, the power to cash a check or to sell a particular piece of property.

General Power of Attorney

This power will usually give the right to handle all your financial affairs. This provision is often used when a person needing help has physical limitations.

If the power to engage in real estate transactions is one of the powers given, the Power of Attorney must be notarized and recorded with the County Recorder.

Printed Power of Attorney forms are usually available at your local stationary store. The law relating to powers of attorney can be found in the California Probate Code starting under Division 4.5, Section 4000. You can have access to these sections by contacting your local law library or by visiting the Official California Legislative Information website at www.leginfo.ca.gov. Because of the seriousness and possible consequences of granting a Power of Attorney, it would be advisable for you to read these sections before giving away any of your rights. If there is anything about Powers of Attorney that you do not understand, you should ask a lawyer to explain it to you.

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