The Law Offices of Irina Sherbak can cater to all your estate planning needs. Power of attorney is a very useful document, both on its own and as part of your estate planning portfolio. Below we provide you extensive information regarding POA, but bear in mind that it is only for the purposes of general knowledge.
If you would like personalized information regarding power of attorney completely free of charge, book your no-cost, no-obligation 30-minute consult with an experienced estate planning lawyer in San Diego. Get in touch with us at 858-208-8900 or firstname.lastname@example.org. We’re here to help!
A power of attorney, or POA, is a document in which one person grants another the ability to act on the grantor’s behalf. The authority in which the agent may act is provided in the document. The POA is a common estate planning tool. It may be for business or financial reasons or it may be for medical decisions.
When a POA is used for business and financial transactions it is referred to with any of the following terms: power of attorney for finances, general power of attorney or financial power of attorney.
When a POA is used for medical decisions it is referred to as power of attorney for healthcare or it can simply be part of advanced healthcare directive.
Note: The following information refers to the general/financial power of attorney. If you would like to find out more about power of attorney for healthcare, please visit our Advanced Healthcare Directive in the list of Services in the main menu bar.
Financial power of attorney – definition
A general power of attorney is used for business transactions. It can come into effect immediately (durable power of attorney for finances) or it can become effective after a specified event, usually incapacitation (springing POA for finances).
For example, a parent can grant a power of attorney to a child, authorizing the child to access the parent’s bank account to pay monthly bills, sell the parent’s assets, including real estate, or purchase assets on behalf of the parent, as specified in the powers granted. If the powers are durable, the child can immediately perform the listed actions alongside the parent, and the powers will continue to be in full force and effect if the grantor becomes disabled. If the powers are springing, the child will be able to carry out those actions on behalf of the parent only after an event such as, if the parent suffers a stroke or another debilitating condition.
If a person becomes incapacitated without a properly executed POA, a conservatorship proceeding may sometimes be necessary to handle the affairs of the disabled. This proceeding is drawn-out, complex and costly and makes practical affairs more complicated at a time that is already psychologically and emotionally demanding.
Drafting and executing a financial power of attorney tailored exactly to your needs can be simple, quick and cost-efficient. It protects your assets as well as those you love. The benefits of a properly executed POA far outweigh its cost. We can help – reach out to us.
What is the difference between a general power of attorney and a durable power of attorney?
A general power of attorney refers to the nature of powers granted – in this case, powers that pertain to financial and business affairs. A durable power of attorney refers to the time when the POA comes into effect – when it’s durable, it comes into effect immediately after signing and stays in effect even if the agent becomes incapacitated.
Financial power of attorney California form
The Internet can be extremely helpful in many ways, but using Internet-sourced free financial power of attorney form is something we advise against. You may think we are biased, but we are simply speaking from experience. Searching for variants of “sample financial power of attorney” or “CA power of attorney form pdf” will return thousands or results, but without the guidance and support from an estate planning attorney you will not be able to understand the (potential) consequences of your choices as you go about filling out a blank CA power of attorney form.
Durable power of attorney – lawyer cost
The cost of getting your own, personalized power of attorney for finances and any other estate planning document is probably much lower than you think. We would love to discuss our fee structure with you – feel free to contact us right away via phone or website form. How much does a durable power of attorney cost? doesn’t have a straightforward answer, because the cost depends on the complexity of the case and the volume of your estate planning portfolio. However, when considering the customary fees for power of attorney with lawyer’s help versus a free online form, remember that your estate planning documents make provisions for a time when you won’t be able to make decisions.
Estate planning documents are powerful. The success with which they are executed can make a world of difference to those you love and who love you.
Will vs. power of attorney
Will gives instructions as to what happens to your personal assets when you die. It can also name a guardian for minor children or it can specify provisions for a family member with special needs. A power of attorney for finances authorizes someone to make financial decisions for you while you are alive. If it’s durable, the powers come into effect immediately, and if it’s springing, it becomes effective after an event, usually incapacitation. You can be as specific as you like regarding the powers you grant.
The will and POA are not exclusive of each other. You can have both documents, and you should. Together, this two documents, and other estate planning documents, form a continuous umbrella that protects your estate and ensures your wishes are carried out as you would like.
Does power of attorney override a will?
The shortest answer is no. The difference between a power of attorney and a will is huge – the first grants another individual the power to make financial decisions instead of you while you are alive, and the other gives instructions how to dispose of your estate once you pass away. Power of attorney cannot trump a will because POA ceases to be effective when you die. If your will doesn’t name an executor for your estate, the court may choose your agent for the executor if the person seems fit for the job.
Can power of attorney change a will?
No. The financial power of attorney clearly specifies and lists the powers you grant the agent. The agent cannot change the content of your will. What the agent can do to affect the will (and this is quite extreme) is they can liquidate assets so your heirs have nothing to inherit.
Choosing your agent should be done carefully and thoughtfully. We can help you with the process of power of attorney so that you achieve maximum protection for your assets. Reach out to us.
Durable power of attorney – limitations
First of all, it’s important to understand that your agent cannot act as she likes. The agent has a fiduciary duty to act in your best interest. A rogue agent can be sued and requested to return the money she took, or she may be taken to jail and fined. A successful power of attorney should be crystal clear as to what the agent is authorized to do, which limits the powers granted and prevents potential abuse. An experienced estate planning attorney can provide you ample information and support to understand all the parts of POA, so you can make informed decisions that work in your best interest.
Power of attorney limitations – examples
In addition to the above discussed limitations that you as the grantor impose, there are certain general limitations that affect a financial power of attorney. The first is the time limit. Unless you set an expiration date on the powers or revoke the powers altogether, the POA will be in effect until you die. Another general limitation is that your agent is not allowed to make changes to your last will and testament. Next, there are limitations pertaining to gifting. If you become incapacitated and the POA doesn’t explicitly say that the agent can make gifts to herself, the law may forbid it. If the principal is incapacitated, the agent may be allowed to make gifts that are consistent with what the grantor would do if she wasn’t incapacitated. Still, there is a cap to what the amount of the gift may be. Even if the agent has a specific authority to make gifts, she should ask an estate planning lawyer and a tax advisor for information and advice to make sure she is acting within her powers.
Does a power of attorney have to be filed with the court in California?
No. In California, power of attorney is valid when it’s notarized or when it’s signed before two witnesses who are not related to either of the parties. If the POA includes powers in connection with real estate, the POA must be notarized so that it can be recorded with the County Recorder.
Financial power of attorney – responsibilities
The agent has a legal duty to act as a fiduciary for the grantor. In other words, one of the agent’s most important responsibilities is to act in the grantor’s best interests. It’s highly advisable that the agent keeps records of all duties performed on behalf of the agent, because the grantor or the court may ask for such accounts (for example, if the grantor or grantor’s relatives believe the agent is abusing her powers). All other responsibilities of the agent should be clearly and unambiguously listed in the power of attorney for finances.
We’d be happy to discuss in person any questions you have regarding power of attorney and any other estate planning documents. Get personalized information for free. Call us at 858-208-8900 or write to us at email@example.com. We’re here for you!