Power of Attorney - Probate (2022)

  • What is a Power of Attorney?

    A Power of Attorney is a document that lets you appoint someone to represent you.
    If you sign a Power of Attorney, you are the principal. The person you appoint to represent you is called the agent or attorney-in-fact.

  • How can a Power of Attorney help me?

    A Power of Attorney lets you authorize someone to handle a specific task, like signing documents for you while you are away. For example, your agent can sign sale documents or contracts for the purchase of a house, or to sell your car.

    Or, your Power of Attorney can authorize your agent to handle on-going tasks.

    Here are examples of tasks you can have your agent do:

    • make bank deposits, withdrawals or other transactions
    • trade stocks and bonds
    • pay your bills
    • buy or sell property
    • hire people to take care of you
    • file your tax returns
    • arrange the distribution of retirement benefits
    • negotiate and sign contracts
    • apply for benefits like SSI or Medi-Cal

    Your agent can do almost anything the Power of Attorney permits. You can also limit the kinds of financial decisions you want your agent to be able to make.

    (Video) Estate planning basics: wills, trusts, power of attorney, and probate (HYW051)

  • Can my agent write or change my Will?

    No. Your agent can establish a trust, but cannot make or change your Will (Probate Code Section 4264 ).

  • Can my agent use my assets?No. Unless you specifically make a gift to him or her, it is against the law for your agent to make gifts to him or herself.

    If you are 65 or older, and your agent takes your property without authorization, s/he can be charged with elder abuse.

  • What if I want to make a gift to my agent?You can make a gift to your agent. However, if your Power of Attorney is a “Durable Power of Attorney,” i.e. one the remains in effect even if you become incompetent, a gift to your agent after you become incompetent may be restricted by law. This is because, if you are incompetent, it would be the agent who is deciding to make the gift of your property to him or herself. You may want to talk to a lawyer first.
  • Is it safe to use a Power of Attorney?

    It is safe if the person you appoint is trustworthy and competent. Be careful to appoint someone you trust completely. That person may be able to access your bank accounts, sell your house, buy and sell stock in your name, cancel your insurance, or perform other important and sensitive transactions.
  • Can I appoint more than one agent?Yes. Sometimes people appoint two or more people who make decisions for you together.

    Or, you can appoint alternate agents. The alternate can step in if the other agent is unable or unwilling to serve.

  • Once the Power of Attorney is in effect, can I still make decisions on my own?Yes. You can make all the financial decisions you used to before you had a Power of Attorney.
  • Can the agent do those things for me, too?Yes, your agent can.
  • When does my Power of Attorney go into effect?You decide when it goes into effect. You can make it go into effect immediately (when you have all the needed signatures), or only if you lose the ability to make financial decisions.
  • How long does a Power of Attorney last?You can decide if you want your Power of Attorney to expire on a certain date, or after your agent does a specific task. Or, your Power of Attorney can be durable. This means it will last either until you cancel it or until you die.
  • Where can I get a Power of Attorney form?You can get a blank Power of Attorney form from:
    • a stationery store or other store that sells pre-printed legal forms
    • your estate planning lawyer, or
    • a written copy of the correct language for Probate Code, § 4401, may be found at a law library, public library or on the Internet under the California Probate Code.

    If you use a preprinted form, we recommend you use one that uses the same words as the Power of Attorney from Probate Code, § 4401. This is the form that banks, escrow companies, stockbrokers, and other institutions know best.

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    Some institutions, like banks, have their own Power of Attorney forms.

  • How do I know what to put in my Power of Attorney?First, decide exactly what powers you want to give to your agent.

    Then, ask yourself if you trust that person. Are there alternatives to a Power of Attorney?

    Next, ask a lawyer for advice, or read about Powers of Attorney so you will understand what you are doing before you sign anything.

    If you have one or more people you trust, and you know what powers you want to give them, you can find a preprinted document that matches your needs.

  • How can I be sure my Power of Attorney is valid? You must sign the Power of Attorney. You can ask someone to sign for you, but you have to watch him or her do it.

    The document must be acknowledged by a notary public or signed by at least 2 adult witnesses. An agent cannot be a witness.

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    If you want the Power of Attorney to be durable, it must say either:

    "This Power of Attorney shall not be affected by subsequent incapacity of the principal", or
    "This Power of Attorney shall become effective upon the incapacity of the principal",
    or similar words that show you want the document to be valid even if you become incapacitated.

    Your Power of Attorney must comply with the provisions of the California Probate Code from Section 4000 through Section 4465.

  • What if I create a Power of Attorney and later the Court appoints a conservator for my estate?

    Unless the Court or the conservator says otherwise, your agent can continue using the Power of Attorney to handle your affairs.

    Your agent must tell you and the conservator about everything s/he does in your name.

    (Video) Can Power Of Attorney Avoid Probate?

  • What can I do if there is a dispute about a Power of Attorney?

    You can end or cancel the Power of Attorney at any time. (See: Can I cancel or change my Power of Attorney? below.)

    If your friends, relatives or officials are aware of problems with a Power of Attorney, they can file a petition with the Probate Department. The petition can ask the Court to review what the agent has done. The Court can decide to investigate further.

  • Can I cancel or change my Power of Attorney?

    Yes. Cancel it in writing. Then, give your statement or new Power of Attorney to any institutions [like banks or stockbrokers] that had the old Power of Attorney.

    Until you do this, they can still use your original document.

  • What if the agent is having problems getting others to recognize the Power of Attorney?

    The agent can ask the Court for help by filing a petition to ask the Court for confirmation that s/he is acting as your lawful agent.

    Or, if a bank or brokerage firm does not accept the Power of Attorney, your agent can ask the Court to order the institution to honor his/her authority.

    See Probate Code Section 4540.

    (Video) Power of Attorney After Death

  • Under Minnesota law, guardianships and conservatorships are used to appoint a person when an individual is unable to make personal decisions or is unable to meet his or her financial needs, even with appropriate technological assistance.

    Your power of attorney may be a general or limited power of attorney.. In any power of attorney, you are considered to be the “principal” and the person to whom you assign the power is your “agent” or “attorney-in-fact.” Your attorney-in-fact does not have to be a lawyer, but it should be someone you trust a great deal.. Durable powers of attorney can be prepared either to take effect immediately or to go into effect only if and when you become unable to make decisions for yourself (called a “springing power of attorney”).. The power of attorney form should indicate what kind of power of attorney you want.. You don’t need an attorney to prepare a power of attorney.. If you want to create a durable power of attorney, you must include a statement such as: “This power of attorney shall not be affected by incapacity or incompetence of the principal.”. The maker of the power of attorney may hold the original power of attorney document.

    Understand what Power of Attorney is, plus the differences between a property and financial affairs Lasting Power of Attorney (LPA) and a health and welfare LPA.

    Power of Attorney is a legal document where one person (the donor) gives another person the right to make decisions on their behalf.. If you want someone to act on your behalf in financial or medical decisions, you'll need to give them Power of Attorney over your affairs.. You can only set up a Power of Attorney while you still have the ability to weigh up information and make decisions for yourself, known as 'mental capacity' - so it's worth putting one in place early on.. If you'd like to set up a Power of Attorney, for yourself, or someone else, Which?. Lasting Power of Attorney is the most common form of Power of Attorney.. This gives your attorney the power to make decisions about:. As soon as you lose mental capacity, the Ordinary Power of Attorney will expire.. In the graphic below, we explain the difference between a Lasting Power of Attorney and an Ordinary Power of Attorney to help you decide which one you need.. In Scotland, Ordinary Powers of Attorney are known as General Powers of Attorney (GPA) and do not need to be registered before use.. Where the person giving authority lacks capacity, a Continuing Power of Attorney (CPA) is required to control their financial affairs.. As part of the process, a solicitor registered to practise law in Scotland or a registered UK medical doctor must carry out an interview with you and confirm that you understand the nature and impact of making a Power of Attorney.. They can be ordinary Power of Attorneys if the donor retains capacity.. If the donor lacks capacity, only an Enduring Power of Attorney that has been registered with the Office of Care and Protection may be used.. If a Power of Attorney isn’t set up in advance, it can lead to complications if you (or a loved one) have difficulty looking after your own finances in the future, or if you will need care or support arrangements to be organised.. Until such a time as a Power of Attorney might need to be actioned, there are several ways you can help a relative or friend manage their bank and building society accounts.

    We explain how to set up Power of Attorney, including Power of Attorney costs and how to use and register it.

    To give someone the authority to act on your behalf, you'll need to set up a Lasting Power of Attorney (LPA) and then register this agreement with the Office of the Public Guardian (OPG).. In the Power of Attorney forms, you'll be asked to give details of the attorneys you wish to appoint and the capacity in which you want them to act (jointly or 'jointly and severally').. Being able to act severally means each attorney can use the Power of Attorney independently.. In the Power of Attorney forms, you'll be asked to identify 'people who need to be told' - meaning people who should know that you are planning to register a Power of Attorney.. You can choose who the registered Power of Attorney is returned to, and either store it for safe-keeping yourself or pass it on to your attorney.. When you return the signed Power of Attorney forms to the OPG, you’ll also need to submit payment.. To act as an attorney, you will need certified copies of the original Power of Attorney.. At the bottom of each page, the donor must write: ‘I certify this is a true and complete copy of the corresponding page of the original Lasting Power of Attorney.’ On the final page of the copy, the donor must write: ‘I certify this is a true and complete copy of the Lasting Power of Attorney.’ Every page must be signed and dated.. Most solicitors will provide certified copies of the OPG document for a very modest charge, even if they didn't provide the original Power of Attorney.. The original LPA document stamped by the OPG (or a certified copy, signed by a solicitor) Proof of each attorney’s identity (their passport, or a driving licence) Proof of each attorney’s address (a recent utility bill). In branch, the bank takes photocopies of the Power of Attorney form and supporting documents.. If you wish to act as someone’s Attorney with a bank, it may require you to make a declaration about whether the donor still has capacity (continuing to sign cheques and receive statements and correspondence, for example) or whether they lack capacity, in which case the attorneys take over entirely.. Some banks provide cheque books with the attorney’s name printed together with that of the donor, while others expect attorneys to sign cheques which bear the donor’s name.

    Videos

    1. Power of Attorney Explained
    (Rabalais Estate Planning, LLC)
    2. Martin Lewis on Wills & Lasting Power of Attorney
    (Will Power Worthing Ltd)
    3. Wills, Trusts, Probate and Power of Attorney
    (Braun & Gresham, PLLC)
    4. ANDREW KIDD: Solicitor: Wills, Probate, Power of Attorney, Tax
    (Claire Richmond)
    5. Trustee vs Power of Attorney vs Personal Representative: Key Roles You Should Know
    (Chesapeake Wills & Trusts - MD Estate Planning)
    6. Difference Between Probate & Power of Attorney #judiciary #law
    (Lawful Talks)

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