An essential tool in the estate planning toolkit is a power of attorney (POA). It can give you flexibility when you have legal matters you can’t personally attend to, such as buying or selling property in another state. It protects you if you’re suddenly and unexpectedly incapacitated, whether temporarily or permanently. But not everyone is comfortable giving broad powers to someone else on an indefinite basis. Fortunately, there are ways you can protect yourself without giving sweeping authority to someone else.

What Is a Power of Attorney?

In California, there are four types of POAs available. 

  • Healthcare POA. This type of POA allows someone to make medical and healthcare decisions on your behalf if you become incapacitated for any reason.
  • General POA. If you want to limit the power of the POA, this is not the best choice. This type of POA extends a wide range of authority to the person named in it. However, this POA becomes invalid if the person who assigned it becomes incapacitated. It can be used if the person who gave it has physical impairments that make them unable to attend to some issues, but if they are mentally incompetent to make decisions, the POA is no longer valid.
  • Limited POA. This type of POA could work best for people with concerns about granting too much authority to someone else. A limited POA is structured to be very specific about what power the person assigned the POA has. For example, if you routinely buy or sell property in other states, you could assign someone a specific property or state on the POA rather than granting them full power for all properties in all states. You can also specify certain financial or legal transactions rather than a broader set of controls. Like the general POA, this becomes invalid if the person who assigned it becomes incapacitated.
  • Durable POA. This can be either a general or limited POA that includes language which specifically notes it remains valid if the person who assigned it becomes incapacitated. 

Should I Not Use a POA if I’m Worried About It?

That’s a question for an estate planning attorney to answer because there are so many variables. But in general, a POA is a valuable tool that offers many protections. Because there are myriad ways to set them up, it’s usually recommended that you consider it. Especially valuable are POAs designed to protect your interests if you become incapacitated. If you don’t have a POA and become incapacitated, the courts could be the entity that determines who should be your representative. It’s possible your family wouldn’t be involved in the decision.

Some POAs are for routine business matters, but others are designed to protect you when the unexpected happens. That’s why determining who should be in charge and how much authority they should have in advance is so important. It’s also important to know that your spouse does not automatically have the right to act on your behalf if you’re incapacitated–they’d still need a POA to make decisions for you. Many people think the spouse can immediately do that, but that’s not the case.

It’s also important to understand that POAs that are active when the person who assigned them is not incapacitated does not mean they have no more say over their own decisions. As long as they’re not incapacitated, they can overrule decisions made by the POA.

Can I Change or Cancel My Power of Attorney?

Yes, this can be done at any point. It’s essential to do it in writing, and getting advice from your attorney is recommended. If at any time you no longer feel comfortable with the person you’ve assigned POA or with what you’ve given to them in the POA, you have the right to amend or revoke the POA or reassign it to someone else. You’re not legally obligated to provide a reason, either, so if there’s an issue of trust, you can share that with your attorney and no one else.

Where Can I Get Help with a Power of Attorney?

Call us at 949-260-1400 to work with one of our experienced estate planning attorneys. Our Orange County, California lawyers can walk you through the process to ensure your power of attorney does what you want it to.