Durable Power of Attorney

power of attorney may include powers regarding personal care decisions, such as the power to determine where the principal will live, to arrange the provision of meals, hire household employees, provide transportation, and handle mail, and to arrange recreation and entertainment.

  The statutory form power of attorney contains the specific personal care powers set out in Prob C §4460. The personal care powers may alternatively be included in a power of attorney for health care, in a separate document, or in an attorney-drafted power of attorney for asset management or revocable trust. Even if these powers are included in Jane’s trust, the attorney might consider including them in her durable power of attorney for asset management if the agent and the successor trustee are the same individuals. Including these powers in the power of attorney for asset management enables the agent to apply assets outside of the trust for the client’s personal care.

Many people will ask why they need a durable power of attorney in California. They do not think it will be necessary or they make the usual statement that they will take care of it at a later time. However, nobody knows when they will become incapacitated. One might have a car accident tomorrow or a stroke or heart attack. One might have a normal surgery and not be cognizant for days. Either way, a durable power of attorney in California is usually in place so that the person who is incapacitated will have somebody who has authorization to make the payments, pay the mortgage, talk to the banks, etc. The durable power of attorney in California will last only so long as you are incapacitated. It is not meant for when you would die. This is the misconception many people have about the durable power of attorney in California. Thus, when you are young and healthy is a perfectly good time to get the durable power of attorney in California. There should not be issues of incapacity or undue influence. Keep in mind that you can also get the durable power of attorney in California at any time and any age. However, if you are elderly, then whether you have testamentary capacity when executing the durable power of attorney in California is certainly an issue.