Hi everybody, it's Andy and welcome again to my office in Modesto, California. I'm
an attorney licensed to practice law in California as well as New York. In this
video, we're going to go over some basics about how California law treats powers of
attorney. So a power of attorney document is a legal document by which a person -
called the principal - is able to delegate or give over some decision-making power
or some decision-making authority that they would ordinarily exercise on
themselves and they're gonna make it so that somebody else can exercise that
power for them. So that other person over here is called the agent. So the
principal has some power, gives the power, you know, to the agent for the agent to
exercise for the principal's benefit. So a lot of times people, you know, have heard
of powers of attorney but, you know, nobody's really kind of defined it. So
hopefully that definition I gave is not too confusing. If it is, let me give
you some examples. So two common examples that I have run in to before is let's
say that you are in the US military and, you know, you're from, say, California,
but, you know, let's say for whatever reason you may have to deploy to Korea,
you have to deploy to, you know, Iraq, Afghanistan, something like that.
Basically you have to deploy outside of the United States for several months. So
while you're gone you can't really, you know, interact, you know, with people in
the United States real well, you can't conduct business. So in that situation, it
might be useful to give over, say, your ability to go to the bank,
etc and have your mom do it for you or have your dad or your sister. To basically
make it so that your brother, your dad, your sister, you know, some other person
can interact with your bank for you just like your bank would interact with you.
So obviously the person, you know, you delegate has to be somebody that you
trust, is reliable, all that stuff. So I'll give you another example. Let's say that
you're the principal, but, you know, you're getting on in years, like you're getting
a bit older. You know that your health is not so good, maybe you have, you know,
early onset dementia or something and you know that in a couple of years,
you're not going to be able to, you know, handle stuff on your own. You're not
going to be able to file taxes on your own. You want to make it so that, you know,
you're prepared for when the day comes and you have somebody there who can take
care of your banking needs, your financial needs, like, you know, if you get
sued, like, you know, somebody can take care of that for you. Basically to handle
all of the "grown-up stuff" I guess that, you know, when you were kids like you didn't
really have to worry about. So that's, you know, two very common examples in which a
power of attorney is something that, you know, would be very useful, I guess. So
that said, a very common kind of question that I get, like a follow on
question that I get is 'Andy, if I want to sign a power of attorney, do I have to get it
notarized or can I just get a witness?' So a power of attorney, generally like I
I just described, is in California Probate Code section 4123
which I'll go ahead and link down below for you in the description,
but the power of attorney generally is California Probate Code section 4123.
The answer to the notarization versus witnessing question, however, is in
California Probate Code section 4121 and specifically it's subsection (c)
that you're interested in. So, you know, 4121(c). Again I'll paste and
link it down below for you, but the basic idea, if you read it, is California law
can do either one. So if you want to notarize your power of attorney document,
you certainly can and it's fine that way, like it's valid after you notarize it. Or
if you don't want to notarize it, for whatever reason, you can have it signed by
witnesses also. So between the two of them, if you can, I generally try to go
for the notarization method because it's very straightforward.
You know, just find any notary anywhere. Pay them, you know, the $5 or $10 per
signature and that'll be, you know, and that's basically it. If you have to have
a notary come out to you, like a traveling notary, there's an extra fee for that
typically, but if you find a fixed business where the notary
doesn't travel, go in to them, I mean there, those businesses are
everywhere. So a lot of times people think that 'Oh well, you know, there's no
notary close to me.' I would be very skeptical on that, like look a little
harder. I'm almost willing to bet that there is. It's probably just not
something you've looked up before. So anyway, that said, you know, notarization
or witnesses are sufficient. You can do either one. Sometimes people do both. It's
not required that you do both, but you certainly can. Maybe it makes you feel
better. So that said, if you want to do the notarization way, I typically like
that better cause it's, you know, easy straightforward, very inexpensive. If,
however, you genuinely cannot get a notary to, you know, do your power of
attorney, you can get it witnessed and specifically you have to have two
independent witnesses. So, you know, if you're gonna do it that way, you know, the
next question basically is 'Andy, who can be a witness?' Hmm. So the answer to that
question is in California Probate Code section 4122. So we're all
basically in like the 4120-ish kind of section, I guess, so but 4122
is you know, you know where they go over who can be a witness. So there's
basically two criteria. Number one is that the witness has to be somebody
who's an adult. So if you have a child genuinely, er, generally rather, not going
to be a good witness. If you have somebody who is over age 18, but for
whatever reason their mental kind of state is less than 18, generally not a
good idea to use them as a witness either. Anyone who has problems with like
perception or anyone who has problems testifying as to what happened and stuff,
generally not a good idea to, uh, to use as a witness. Best to get somebody else,
but anyway, regardless, the first one, the first criteria is that the
person, the witness has to be an adult. Number two - this one's pretty
straightforward, I guess - is that the attor, the agent-in-fact, sometimes called
the attorney-in-fact, the agent who is being designated in the power attorney
cannot be a witness. That's pretty straightforward because, you know, basically, you
know, this person, the agent over here, you just can't use them. You can use basically
anybody else who's an adult, just not the agent. So those are the kind of, the kind
of typical questions that I get when it comes to powers of attorney. Number one
what a power of attorney is. Number two can I notarize it or do I have to get a
witness? If I do get a witness, who can be a witness? So the, the basically - I guess
this is not really a question that I get, but, you know, I'll toss this in there
also - is that, if you are going to be a witness to, you know, the signing of
a power of attorney, there's two ways that you can do it. You can actually see
the principal signing like, you know, the principal can actually sign in your
presence and you can witness that. That would be great, I think. The other way is
called acknowledgement and that basically is the principal signs his or
her name, calls you over, and says 'Hey, I just signed this. This is my signature.'
So the thing is, the admission that, that is their signature that's, that's
sufficient also. That's called the Acknowledgement of the Principal to the
witness. Yeah, so hopefully that was not too confusing go ahead and rewind this
video if you want, watch it again, and leave me a comment, subscribe, all
that nice stuff and I will talk to you guys next time.
Thanks.