Santa Clara Power of Attorney Lawyers

The California statutes provide that you (the principal) can give an attorney-in-fact (the person or entity you choose) the authority to act on your behalf with respect to a wide variety of purposes or with respect to one or a few purposes. California law authorizes two main types of powers of attorney:

• Property matters. With a personal property power of attorney, you grant the attorney-in-fact the authority to make decisions about your home and personal property – whether you own the real or personal property when you create the power – or if you acquire the property later. You don’t need to describe the property. Generally, a property/financial power of attorney gives the person you designate the power to make deposits, pay your bills, sell your property if necessary, and other financial powers. You can limit some of these powers.
• Personal care. With a personal care power of attorney, the person you give authority to act for you can make decisions about where you live, what meals you can, how your mail is handled, what recreation and social activities you engage in, your transportation, and whether to hire any household staff.

There are specific requirements that must be met for a power of attorney to be valid such as that you must sign and date the power and the signing must be acknowledged by a notary or be signed in front of two witnesses. The attorney-in-fact can be a lawyer but can also be a relative or friend.

 A durable power of attorney, in California, is a power of attorney that also includes one of the following statements – which indicate when the power of attorney becomes effective and how incapacity affects the power of attorney:

• “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 words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent incapacity.”

Generally, a basic power of attorney is used if you are mentally competent but become physically ill – due to an accident or a disease.

A durable power of attorney is used to give a person authority over your financial, personal, or medical affairs – if you become ill at a later date. Seniors often prepare a durable power of attorney because they anticipate the ailments that come from old age – including dementia, falling, or other cognitive or physical disorders.

Normally, as soon as you sign the power of attorney, the attorney-in-fact has the authority to handle your financial, personal, or medical affairs (depending on the purpose of the power of attorney). If you want the power to start when you became ill, then you need to create a durable financial power of attorney. A power of attorney stops:

• If you become incapacitated.
• When you die. After death, the personal representative of your estate handles your financial affairs.
• If you revoke the power of attorney – provided you’re mentally competent when you revoke the power.
• If your spouse is your attorney-in-fact and you divorce him/her.
• If the person you appoint can’t act because he/she has her own disability or because that person dies.

The attorney-in-fact you choose has the right to be paid a reasonable fee for acting on your behalf. The person you select generally must act in your best interests. If they are handling your finances, they should keep your accounts and their accounts separate.

Your lawyer can prepare a financial power of attorney that sets forth the precise powers the person you choose has. 

There may be limits to the financial power of attorney. Your Santa Clara power of attorney lawyer will explain what other options such as creating a trust you may need to consider.

A medical power of attorney is different than a financial or personal care power of attorney. Normally, only your spouse can medical decisions for you – unless you prepare a medical power of attorney.

Like a financial or personal care power of attorney, a medical care power of attorney is effective as soon as you sign the power – unless you prepare a durable power of attorney. A durable medical power of attorney becomes effective when you become incapacitated.

Our Santa Clara lawyers will explain why you might need a medical power of attorney. Generally, medical powers of attorney are used:

• To obtain medical information. The person who holds your medical power of attorney and a HIPAA release form can obtain your medical records from the health providers that treat you.
• Make medical decisions for you. If you feel fine, then you normally make your own medical decisions. If you become ill or incapacitated, then the person who holds the medical power of attorney can decide what doctors you see, what medical tests you take (that your doctors recommend), and what recommended treatments the health providers can provide such as surgeries, medications, and other treatments. California does limit some medical decisions even if you have someone who has full medical power of attorney.

Generally, you should choose someone to make medical decisions for you, according to the Mayo Clinic, who is:

• Not one of your health providers
• Qualifies as a medical agent
• Is willing to make medical decisions, including end-of-life decisions for you
• Is capable of being your advocate

In California, your doctors must respect your end-of-life decisions provided there is a signed POLST or a Do Not Resuscitate (DNR) form. The POLST form is used separately or in conjunction with the DNR form. The POLST form lets emergency care health personnel and health providers and emergency medical personnel know whether they should use cardiopulmonary resuscitation (CPR) on your behalf if there is a medical emergency. 

When you enter a nursing home, a hospital, or receive hospice care – you may be asked to sign a POLST form. A POLST form must also be signed by a doctor or a nurse practitioner/physician assistance supervised by a physician – and by you or the person designated in your medical power of attorney. 

The POLST form differs from a DNR form in that a POLST form does allow for life-sustaining measures such as feeding tubes, antibiotics, dialysis, or intubation. 

Health care directives and livings wills may also be prepared by your Santa Clara lawyer to address end-of-life care.

At JS Abrams Law, our Santa Clara elder care attorneys advise seniors and anyone concerned about illness or incapacity – about financial, personal, and medical directives, and any related documents. Call us at 818-330-4515 or fill out our contact form to schedule an appointment to understand your eldercare rights and options.