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How to Make a Power of Attorney

Updated: 6 days ago

General Information

A power of attorney is a written instrument that is executed by a natural person having the capacity to contract ("principal") who grants authority to an attorney in fact regardless of whether that person is known as an attorney in fact, or as an agent, or by some other term. Prob. Code § 4120 et seq.; Prob. Code § 4014(a).


A power of attorney is legally sufficient if all of the following requirements are met:


  • The power of attorney contains the date of execution.

  • The power of attorney is signed either by the principal or in the principal’s name by some other adult in the principal’s presence and at the principal’s direction.

  • The power of attorney is either acknowledged before a notary public or signed by at least two qualified witnesses.

However, after 2011, proof of the execution of a power of attorney otherwise than by acknowledgment is not permitted, for the purpose of recording the power of attorney (Gov. Code § 27287), and possibly is not permitted generally. (see Civ. Code § 1195(b)(1))



Witness Requirements:

  • Adult

  • Cannot be the attorney in fact

  • Eat individual must witness either the signing of the instrument by the principal or the principal’s acknowledgment of the signature or the power of attorney

In the case of a durable power of attorney for health care, there are additional requirements regarding witnesses.



Springing Power of Attorney


A springing power becomes effective at a specified future time or on the occurrence of a specified future event or contingency, including, but not limited to, the principal’s subsequent incapacity.


A statutory form power of attorney can be a springing power.



Durable Power of Attorney

A durable power of attorney is one that contains any words showing the principal’s intent that the authority conferred shall be exercisable notwithstanding the principal’s subsequent incapacity.



Statutory Form

A power of attorney that conforms substantially to the prescribed statutory form power of attorney is legally sufficient when the form is properly completed, and the principal’s signature is acknowledged.


A statutory form power of attorney that limits the power to take effect upon the occurrence of a specified event or contingency, including, but not limited to, the principal’s incapacity, may contain a provision designating a person or persons who, by a written declaration under penalty of perjury, shall have the power to determine conclusively that the specified event or contingency has occurred.



 

If you need help making these decisions or want one of our attorneys to review your escrow instructions and/or contingencies, contact us today for a FREE phone consultation: (800)-233-8521.





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