ATTORNEY NEWSLETTER
Why are powers of attorney important to have?
Estate planning in all its varieties comes down to protecting you, your spouse, and your children and grandchildren after you die but also as you age. A Power of Attorney can protect you while you’re alive but no longer able to manage your own affairs effectively. Our elder abuse litigators see too many surviving spouses and children suffer because a valid Power of Attorney with a trusted agent was not in place before a senior loved one became incapacitated.
What are the types of financial powers of attorney?
Financial powers of attorney can be either a durable power of attorney which is effective immediately upon execution or a “springing” power of attorney which is effective immediately upon the incapacity of the principal. The basic POA form is set forth in a California statute. See Cal. Probate Code § 4400 et seq. Unless otherwise specified, a power of attorney is effective immediately.
However, the instrument may specific that it is only effective upon the occurrence of a specific event such as the incapacity of the principal. Probate Code Section 4405 reads in pertinent part:
(a) A statutory form power of attorney under this part that limits the power to take effect upon the occurrence of a specified event or contingency, including, but not limited to, the incapacity of the principal, may contain a provision designating one or more persons who, by a written declaration under penalty of perjury, have the power to determine conclusively that the specified event or contingency has occurred.
(b) A statutory form power of attorney that contains the provision described in subdivision (a) becomes effective when the person or persons designated in the power of attorney execute a written declaration under penalty of perjury that the specified event or contingency has occurred, and any person may act in reliance on the written declaration without liability to the principal or to any other person, regardless whether the specified event or contingency has actually occurred.
Who determines a principal’s incapacity?
This is an extremely important feature of a “springing” power. If the instrument is not extremely clear as to the procedure for determining incapacity, a real struggle can ensue over the question if capacity. Typically, a springing power will state that the determination must be made by one or more physicians and attested to in writing. We cannot emphasize strongly enough that if you want your POA to spring into effect only when you are incapacitated you must be sure the draftsman of the power inserts very clearly into the instrument the exact procedure you wish to have followed to make your capacity determination.
Is there a power of attorney for health care matters?
Yes. The power of attorney for health care matters in California is called an Advance Health Care Directive (“AHCD”). The form for the AHCD or medical POA is also found in California statute. See Cal. Prob. Code §4701 (statutory form for AHCD). Like with a financial POA, the person granting the authority is referred to as the “principal” and the persons to whom the powers are granted are referred to as “agent(s)” or “attorney(s)-in-fact.”
Who can be my AHCD Agent?
Any adult can serve as your AHCD agent but be careful whom you select for this role as he or she will have ultimate authority over all medical decisions (including life support procedures) on your behalf.
Can an AHCD also only spring into effect when I am incapacitated?
Yes, in fact unless it says otherwise, an AHCD only becomes effective when you are incapacitated. Cal. Probate Code § 4682 reads:
Unless otherwise provided in a power of attorney for health care, the authority of an agent becomes effective only on a determination that the principal lacks capacity, and ceases to be effective on a determination that the principal has recovered capacity.
Contact Us
Unfortunately, appointed agents under POAs and AHCDs may abuse their authority or someone (like a caregiver) may forge or exert undue influence to get financial and health care powers over a senior. If that happens to you or an older loved one, call Ingrid M. Evans and the elder abuse litigators at Evans Law Firm, Inc.
Our attorneys will pursue all available remedies against the parties responsible for this kind of fraud, which can include recovery of attorneys’ fees and expenses for the injured senior. Cal Probate Code §§ 4231.5 (fees for abuse of financial POAs) and 4771 (fees for abuse of AHCD). Ingrid and our other elder abuse attorneys can be reached at (415) 441-8669, or by email at [email protected]. Our toll-free number is 1-888-50EVANS (888-503-8267).
