California power of attorney requirements

What is a power of attorney?

A power of attorney, or POA, is a legal document that lets you grant another person the authority to make important medical or financial decisions on your behalf. This person is called an agent (or “attorney-in-fact,” as it’s known in California). The creator of the POA is called the principal.

In California, you’re able to create your power of attorney without the help of an estate attorney. As long as you follow California’s requirements, any POA you create is just as valid as one drafted by a lawyer. And with the help of free power of attorney forms, it’s easier than ever to create a California POA that reflects your wishes.

Refresher: What is a power of attorney, and why do I need one?

Types of powers of attorney

The state of California recognizes several types of POAs. Each one serves a specific purpose and gives your agent distinct powers. You’ll want to choose one that’s the best fit for your situation. Here are the most common options:

1. Durable power of attorney

When a power of attorney is “durable,” it means your agent’s authority continues if you become incapacitated and unable to manage your financial matters. For example, your agent’s power would go into effect if you were in a coma or suffering from substantial mental decline. If your POA isn’t durable, your agent’s power to act ends if you become incapacitated.

All of the POAs listed below can be made durable. To do this, you should include langage specifically stating you want your agent’s authority to continue if you become incapacitated. Under California law, a power of attorney is considered durable if it contains the words: “This power of attorney shall not be affected by subsequent incapacity of the principal,” or something similar.

2. General power of attorney / financial power of attorney

In California, a general power of attorney may also be called a financial power of attorney or uniform statutory power of attorney. Regardless of what it’s called, in California, this legal document gives your agent the authority to handle your financial and business matters. For example, your agent could pay your bills, sell or rent out your real estate, file your taxes, and more.

A general POA doesn’t let your agent make health care decisions for you. Those decision rights are covered by a medical power of attorney.

3. Medical power of attorney

A medical power of attorney — known officially in California as a “power of attorney for health care” — gives your agent the authority to make health care decisions for you. Under a California medical POA, your agent’s authority is only in effect while you're deemed incapacitated, unless you explicitly state otherwise in your document.

In California, a medical power of attorney may go by several names, including:

• Health care power of attorney
• Advance directive
• Advance health care directive
• Power of attorney for health care

All of these terms often refer to the same document.

There’s a template of California’s power of attorney for health care form available in Section 4701 of the California Probate Code. It can be difficult to print and use, so you may prefer using free online software to quickly and easily create your medical power of attorney.

4. Limited power of attorney

With a limited POA, you only allow your agent to act in a certain scenario, to complete a specific task, or to have power for a limited period of time. For example, say you own a piece of real estate in a different city. Instead of traveling to and from that city to manage your property, you could grant your agent the authority to manage it on your behalf.

California power of attorney requirements

To make a California POA, you must:

• Be at least 18 years old.
• Have mental “capacity,” meaning you’re able to understand the nature and consequences of creating a POA.
• Sign and date your POA in the presence of a notary public or in front of two competent adult witnesses, who also sign and date your document. Your agent can’t be a witness. Additionally, for a medical POA, your witnesses can’t be:
  • Your health care provider (like your doctor or caretaker)
  • Any employee of your health care provider
  • Anyone who works at a community or residential care facility (for example, a nursing home)

Depending on which type of POA you make, there may be additional signing requirements:

• If you give your agent the authority to manage your real estate property, then your POA must be notarized.
• If you make a medical POA and live in a nursing home, your POA must be witnessed by a patient advocate or ombudsman (in addition to your notary or as one of the two witnesses).

Once you create a POA, it’s a good idea to give a copy to your agent. They’ll need to present the POA to appropriate authorities (for example, your bank or hospital) to prove they have the authority to make decisions on your behalf.

Who can serve as your agent in California?

Under California law, your POA agent can be anyone who is at least 18 years old and of sound mind. Your agent doesn’t have to be a lawyer — they can be a family member, close friend, business partner, or anyone you trust to act in your best interests.

If you have a power of attorney, do you still need a will or trust?

Yes, estate planning experts agree that you should have both. These important legal documents serve different purposes. Your POA covers important decisions that have to be made during your lifetime in the event you become ill or injured. Your last will and testament or revocable living trust explains how you want your property distributed after you die.

A last will and testament is an important estate planning tool. But in California, where probate can be long and expensive, estate attorneys often recommend a revocable living trust alongside a simple will (sometimes called a “pour over” will).

How to get a power of attorney in California

Here are the basic steps to make your California power of attorney:

1. Decide which type of power of attorney you want. If your POAs are for estate planning purposes, consider a durable medical POA for your health care preferences and a general POA for your finances.
2. Decide who you want to be your agent. Your agent will have a lot of authority, so you should choose someone you trust to act in your best interest. It’s a good idea to speak to this person beforehand and make sure they’re willing to serve as your agent.
3. Decide what authority you want to give your agent. What financial or medical decisions do you want them to be responsible for managing on your behalf?
4. Get a power of attorney form. The Government of California provides free POA forms in the California Probate Code, but they can be challenging to format and use. Another option is to use FreeWill's free online software to create your power of attorney quickly and easily.
5. Complete the form, sign it, and have it notarized or witnessed. According to California law, you can either sign in front of a notary public or in front of two competent witnesses. If you’re making a medical POA, remember that your witnesses can’t be your health care provider or an employee of your health care provider.
6. Give a copy of your POA form to your agent and other interested parties, like your bank and medical office.
7. Keep your POA forms in a safe place with your other estate planning documents.
8. Keep your POA updated as your circumstances change.

A power of attorney creates peace of mind

If you’re ready to create your power of attorney but aren’t sure where to begin, FreeWill can help.

Interested in creating a general power of attorney?

With FreeWill, you can create your free California general power of attorney (also called a financial power of attorney) in less than 20 minutes. When you’ve completed the questionnaire, you’ll receive a document reflecting your wishes, along with instructions for how to make it valid in California.

Interested in creating a medical power of attorney?

Consider making a living will, which includes a medical POA. FreeWill’s questionnaire will guide you through each step, providing questions and examples to help you decide which decision rights you want your agent to have. When you’re done, you’ll receive a document reflecting your wishes, along with instructions for how to make it valid in California.

Everyone’s situation is unique, so if you have any questions or concerns about your power of attorney, consider meeting with an estate attorney.