power of attorney
Aug 8 2018 0

California Durable Powers of Attorney

Many people avoid taking steps to put an estate plan in place because they do not want to think about what will happen to them when they die or become unable to care for themselves.  However, it is always a good idea to make sure you have arrangements in place to ensure that there is a smooth transition when that day does come. At the Leiva Law Firm, our team works with individuals to implement specific estate plans in accordance with their individual wishes.  Many times, this includes creating what is known as a durable power of attorney.

In California, a durable power of attorney is used when you want to appoint someone to manage your affairs.  A durable power of attorney allows your appointed agent to act as your attorney-in-fact if you are unable to do so.  If you do not have a durable power of attorney, a court in California has the authority to appoint a guardian as part of a conservatorship proceeding.

What Can Be Done With a Durable Power of Attorney?

power of attorneySection 4264 of the California Probate Code sets out a list of powers that can be granted in the durable power of attorney document, including:

  • Creation, Modification of Revocation of Trusts
  • Make Gifts on Behalf of the Principal
  • Designate or Change Certain Beneficiaries to Receive Rights in the Principal’s Property Upon Death.
  • Make a Loan to the Agent

Under California Probate Code Section 4123, other broad authority may be granted to the attorney-in-fact, including all types of decisions relating to the principal’s real and personal property as well as decisions relating to the principal’s personal care, such as where the principal will live, hiring employees to work for the principal, handling the principal’s mail, providing transportation and decisions relating to recreation and entertainment.

Choosing an Attorney-in-Fact

Under California law, the powers granted to an attorney-in-fact can be nearly unlimited.  The attorney-in-fact can be given broad authority to do almost anything that the principal could otherwise do for themselves.  When creating the durable power of attorney, a principal may elect to limit some of the powers granted to the attorney-in-fact by law.

It is essential to select an agent who the principal can trust to act in the principal’s best interest.  The attorney-in-fact has a fiduciary duty to act in good faith on behalf of the principal. Still, there are many instances when an attorney-in-fact exceeds their authority and even commits fraud in this capacity.  For that reason, you should think carefully about the person you intend to appoint as your agent under the durable power of attorney.

California Estate Planning Attorneys

A durable power of attorney is one aspect of a complete estate plan.  At the Leiva Law Firm, attorney Marlene Leiva helps her clients by drafting estate planning documents that will give the peace of mind, knowing that their affairs will be handled smoothly in the event of death or incapacity.

For a free consultation, please call our office today at 818-519-4465, or contact us online.

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