How to Get a Durable Power of Attorney in California

Whether in Sacramento or San Diego, you’ll follow the same general process to get a durable power of attorney. Follow these 5 steps to create yours. 

A durable power of attorney (DPOA), also known as a durable POA, is one of the most important documents to include in your estate plan. Thankfully, California Probate Code provides clear guidelines for creating one, and we’ll outline the requirements to keep in mind below. 

What is a durable power of attorney?

A durable power of attorney is a legal document that lets you name someone who can make financial or legal decisions on your behalf in the event that you become incapacitated. When you create a California power of attorney, you’ll frequently see these terms:

• The principal is the person creating the power of attorney (you)
• The attorney-in-fact (also called an agent) is the person or persons you give the legal authority to act on your behalf

First, you should determine the specific attorney power you wish to grant, as California has different POAs—both durable and nondurable—for particular circumstances and needs. 

Types of power of attorney

Here’s an overview of the primary types of power of attorney you can establish in California. 

• General power of attorney: Broadly grants the authority to handle your business, legal, or financial decisions (but expires if you become incapacitated)
• Limited power of attorney: Restricts authority to specific tasks, such as managing only your business or CalPERS benefit decisions
• Durable financial power of attorney: Functions like a general POA but stays in effect while you’re incapacitated
• Advance health care directive: Specifies your healthcare preferences and who will make medical decisions on your behalf (previously known as a power of attorney for health care in California) 
• Springing power of attorney: Takes effect only at a specified time or event, including incapacity, as defined in the document

The main distinction is that a durable POA offers specific protections if you can no longer manage your own affairs due to incapacity. Without a durable POA in place, your family may need to petition the court for conservatorship, which can be time-consuming, emotionally draining, and costly. 

A DPOA helps avoid this scenario since you proactively name someone who can act immediately when needed. However, a durable POA is typically limited to legal or financial affairs, so you’d also need to create an advance health care directive (usually as part of a living will) for medical decisions. 

Requirements for a durable POA in California

To create a valid durable POA, you must satisfy specific requirements outlined in California Probate (Prob.) Code, including the following: 

Mental capacity

As the principal, you must have the mental capacity to understand the document’s purpose and implications. More specifically, according to CA Prob. Code Sec. 4120 (and all related legislature), you must have the “capacity to contract.” In other words, you must be able to: 

• Clearly communicate your decisions
• Understand the authority you’re granting to your named agent
• Recognize how this decision affects your rights and responsibilities
• Comprehend the potential risks and benefits involved 

It’s crucial to create your DPOA while you’re mentally sound, as the document can’t be established once you become incapacitated. For more information about mental capacity requirements in California, refer to Prob. Code Sec. 812 and Civ. Code Sec. 39.

Signing requirements

According to CA Prob. Code Sec. 4121, your durable POA must meet the following signing requirements to be legally valid: 

• Includes the date of execution
• Signed by you (the principal) or by another adult acting under your direction and in your presence
• Notarized OR signed by two qualified witnesses

If you choose to have your DPOA witnessed, the witnesses must be adults and watch you sign the document (or acknowledge your signature). However, your named attorney-in-fact can’t act as a witness, and it’s recommended that you use a notary public if any real property is involved.  

Attorney-in-fact eligibility

Your attorney-in-fact must be an adult with the capacity to contract in order to serve in this role. In addition, they must meet the requirements outlined in CA Prob. Code Secs. 4200 to 4207. Here are the takeaways:

• You can (but aren’t required to) name multiple attorneys-in-fact
• If you name more than one, they must act unanimously
• You can designate successor attorneys-in-fact to step in if your primary becomes unavailable

Ideally, you should choose someone who not only meets the legal requirements but understands your wishes and values. Your agent should also have the time and ability to carry out their responsibilities, so try to pick someone who’s trustworthy and financially responsible. 

How to create a California durable power of attorney

Now that you’re familiar with the requirements for a durable POA in California, you can follow these steps to create one for your estate plan: 

1. Determine the powers to grant

Your durable POA should clearly specify which financial and legal decisions you want your attorney-in-fact to handle. For instance, you can specify if you want your agent to handle some or all of the following needs: 

• Managing bank accounts, investments, and financial transactions
• Paying bills and handling tax matters
• Operating your business affairs
• Managing retirement accounts and insurance policies 

Remember that a durable POA doesn’t typically cover healthcare decisions in California. As a result, you’ll need to create a separate advance healthcare directive to designate someone to make medical choices on your behalf. 

2. Select a trusted agent

Building on the eligibility requirements discussed earlier, take time to consider who would best serve as your attorney-in-fact. All things considered, they should understand your wishes and have the practical ability to manage your affairs. 

Before naming them in your durable POA, talk with your agent about the responsibilities asked of them and any concerns they may have. Moreover, remember that you can designate multiple attorneys-in-fact or successors as backup options. 

3. Draft the document

You can create your durable POA by using California’s Uniform Statutory Form Power of Attorney (see pages 3-5), which is a standardized template that meets general state requirements. 

While this is a useful starting point, you may want to consult an attorney or use a reputable POA service if you need to personalize the document. For reference, LegalZoom offers power of attorney plans for as low as $39 and can help you connect with an attorney who can advise you and your family. 

If you decide to use a pre-drafted template and don’t receive legal advice, be sure to read the mandatory warning statement (and provide it to your agent) found in CA Prob. Code Sec. 4128. 

4. Include necessary language

Whichever method you choose, your document must clearly state that the powers granted remain valid if you become incapacitated. According to CA Prob. Code Sec. 4124, you can establish this with the following statements:

• “This power of attorney shall not be affected by subsequent incapacity of the principal”
• “This power of attorney shall become effective upon the incapacity of the principal” 
• Similar language that shows you want the authority to continue despite future incapacity 

It’s important to be specific about when you want the powers to take effect. You can make the durable POA effective immediately or specify that it becomes active only upon your incapacity (i.e., a springing power of attorney), if desired. 

5. Sign and notarize

Once you create the document, be sure to sign the durable POA in front of a California notary public or two witnesses, as discussed earlier. After signing, you should keep the original in a secure location and give a copy to your attorney-in-fact. 

You might also file a copy with your county’s Clerk Recorder if the document involves real estate, as well as any relevant financial institution that might need it. 

How and when to revoke a durable power of attorney

While a durable POA grants considerable authority to your attorney-in-fact, you still retain the right to revoke it at any time as long as you have the mental capacity. According to CA Prob. Code Secs. 4150-4155, you can revoke a POA in several ways: 

• Inform your attorney-in-fact verbally or in writing that you revoke their authority
• Create a new POA that explicitly revokes the previous one
• Follow any specific revocation terms included in the original document

Broadly speaking, you might want to revoke a DPOA if circumstances change with your attorney-in-fact. For instance, if your chosen agent moves out of California, they may no longer be able to manage your affairs. Similarly, you might change your agent if you think of someone else who better understands your needs and preferences.

FAQs

What is the difference between a regular power of attorney and a durable power of attorney?

A regular power of attorney becomes invalid if you become incapacitated, while a durable power of attorney remains effective. This ensures your chosen attorney-in-fact can continue managing your affairs even if you can’t make your own decisions. 

When does a durable power of attorney take effect in California?

A durable power of attorney takes effect immediately after signing unless specified otherwise in the document. For example, you can create a springing power of attorney that activates only when specific conditions are met, such as incapacity. 

Can I have more than one agent in a durable power of attorney in CA?

Yes, you can name multiple attorneys-in-fact—also known as agents—in your durable power of attorney. However, they generally must make decisions unanimously when managing your affairs. 

Is a durable power of attorney valid after death?

No, a durable power of attorney expires immediately once the principal dies. After death, the executor or administrator of the deceased’s estate typically has the authority to make decisions on their behalf. 

Where can I get a durable power of attorney form in California?

California law offers a statutory form that you can use, or you might work with an attorney if you want to customize the document. You can also use POA services like LegalZoom to get assistance for a more affordable and predictable price.