For most Californians, estate planning means making plans for the disposition of one’s property after death. While this is usually the most important aspect of estate planning, it is far from the only one. Many people, especially as they get older, face the possibility of a prolonged period of mental or physical incapacity, or both. Planning for the possibility of incapacity should be a key element of any California estate plan.
One of the most basic estate planning documents in California is the durable power of attorney. A power of attorney is a document that appoints a designated representative to handle your financial affairs and property.
A power of attorney is durable if it states it will remain effective in the event you become incapacitated. The person who grants the power of attorney is known as the principal. The person designated to handle the principal’s affairs is known as the attorney-in-fact.
The attorney-in-fact does not have to be an attorney at law. Most people appoint a close relative or a trusted friend. Appointing the right person is critical. A power of attorney grants broad and sweeping authority to the attorney-in-fact. For example, an attorney-in-fact is often granted authority to sell property or withdraw funds from bank accounts. If this authority is abused, it can have devastating results for the principal and other family members.
At my law firm, I help my clients select the right person as attorney-in-fact. I carefully draft a power of attorney that clearly states under what circumstances it will become effective, and what powers are granted — and not granted — to the attorney-in-fact. For more information on how a durable power of attorney can help prepare for incapacity, visit our powers of attorney web page.