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In estate planning, one crucial document stands out for its ability to safeguard your interests: the power of attorney. Imagine this scenario: your aging parent suddenly falls ill and becomes incapacitated. Bills need to be paid, medical decisions made, and financial affairs managed. Without a power of attorney in place, you may find yourself grappling with legal hurdles and bureaucratic red tape just to assist your loved one.

Simply put, a power of attorney (POA) is a legal document that grants someone else the authority to act on your behalf in financial, legal, or medical matters if you become incapacitated or unable to make decisions. 

But what happens if the unexpected occurs before your loved one creates a POA? Can you obtain a POA without their consent?

Power of Attorney Basics

A power of attorney is a legal document that grants someone else (agent) the authority to act on your behalf in various matters, such as financial transactions, healthcare decisions, or legal actions. There are different types of POAs, each serving a specific purpose.

  • General Power of Attorney: Grants broad authority to the agent to manage various financial and legal matters on behalf of the principal.
  • Limited (or Specific) Power of Attorney: Authorizes the agent to perform only specific tasks or transactions outlined in the document.
  • Durable Power of Attorney: Remains valid even if the principal becomes incapacitated or mentally incompetent.
  • Springing Power of Attorney: Becomes effective only upon the occurrence of a specified event or condition, such as the principal’s incapacity.
  • Medical Power of Attorney (or Healthcare Proxy): Allows the agent to make healthcare decisions for the principal if they cannot do so.
  • Financial Power of Attorney: Grants authority to the agent to handle financial and property matters on behalf of the principal.
  • Special Power of Attorney: Authorizes the agent to handle specific tasks or transactions, such as selling a particular property, for the principal.

How to Obtain Power of Attorney

Typically, to obtain power of attorney, the principal—the person granting the authority—must willingly sign the POA document while they are of sound mind. 

To obtain a California Power of Attorney form, the principal must be at least 18 years old, possess the mental capacity to understand its implications, and sign and date the document before a notary public or two competent adults willing to witness it. 

When selecting agents, it’s vital to note that agents cannot act as witnesses. Moreover, certain individuals are ineligible to serve as witnesses for a medical Power of Attorney, including the principal’s caretakers or doctors, members of the principal’s healthcare provider staff, and employees of community or residential care facilities like nursing homes.

If the principal becomes incapacitated before creating a POA, obtaining one without their prior consent may be challenging.

Can You Get Power of Attorney without Consent?

Can you obtain power of attorney without the consent of the principal? The short answer is no. A power of attorney must be willingly granted by the principal, the person for whom the powers are being designated. Without their consent, any attempt to obtain power of attorney would be invalid and legally unenforceable.

As long as the principal is mentally competent, they have the authority to establish, annul, or modify a power of attorney, including the appointment of agents. If they are no longer mentally competent, they cannot legally do any of these actions, and neither can anyone else do it on their behalf.

Only family members can challenge a power of attorney. This includes adult children, parents, and siblings. In certain states, cousins, aunts, and uncles may also have the ability to contest a power of attorney.

It’s crucial to plan ahead and create a power of attorney well before any unexpected events occur. This ensures that your wishes are known and that someone you trust can manage your affairs if you become unable to do so yourself. If you have questions about obtaining power of attorney or need assistance with estate planning, contact Hermance Law to speak with an experienced attorney who can guide you through the process.

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