Legal Question in Wills and Trusts in California

Before responding to your question, I need to let you know that we attorneys who answer LawGuru questions are private attorneys whose only connection to the LawGuru/FindLegalForms operation is our agreement to receive questions via email and respond to those we choose. So we not only did not prepare those forms, most if not all of us have never seen them. With that caveat, however, based on the title of the documents it sounds pretty certain you want document #1 only.

No power of attorney is effective after death. That is what a will or trust is for. The executor of the will or trustee of the trust has the power once the person dies, and can certainly be the same person as the "attorney in fact" who holds the intravivos POA.

As for the types of POA, a durable POA survives disability or incapacity. That is what distinguishes it from a General POA, which only empowers a person to do what the grantor could legally do themselves. So if the grantor of the General POA would be unable to legally act due to mental incapacity or traumatic disability, such as a coma, the attorney in fact is unable to act. (Mere physical disability, as distinguished from legal or mental disability, does not affect a General POA as long as the grantor has the legal and mental capacity to act).

There are then two types of Durable POA. A Durable POA that includes language that makes it only take effect upon disability, is called a "springing" POA, because it "springs" into effect when the grantor of the power becomes mentally incapacitated or legally disabled from acting on their own behalf. Until then the attorney in fact has no powers.

The second type is the broadest type of POA. A Durable Power of Attorney Effective Immediately, combines the General POA and the springing Durable POA into one. The power of the attorney in fact to act on the grantor's behalf is effective immediately, and continues unless revoked, regardless of the grantor's physical or mental condition, until the grantor's death. It sounds like that is the type of POA you want, and that would be Form #1 in your list.

It is also possible to create a Durable POA Effective Immediately, that increases or decreases the powers that the attorney in fact may exercise once the incapacity or disability occurs, but I would strongly recommend against modifying an attorney-prepared form yourself. If you want the powers before and after disability/incapacity to be different, you should probably consult an attorney in person, or at minimum use separate General and springing Durable POA forms.

I agree with Mr. McCormick. Estate planning is like brain surgery, it is not something you should do yourself. Save you and your family a lot of heartache and money and talk to an estate planning attorney.

Remember that a power of attorney grants a person no more rights then the person signing it had at the time of signature. If the person at that time lacked the mental capacity to know what they were doing, then the person with the POA likely wise has no power to do anything that is legally binding. The general power of attorney is suspended when the person, in the future can not act. The durable power survives [endures] while the person is disabled. All end when the person's life ends. The holder of a POA is required to do what the grantor of the POA would want them to do; if the grantor can and does do something different, the holder of the POA can not contradict that. It is somewhat like a proxy; if the owner shows up to the meeting, it is as though there is no one holding the POA. You can also modify the general language to limit it to certain circumstances or to do only certain things.

Before signing any documents, you must figure out exactly what you really want done, what tax consequences it might have, what effect on other family members, etc. Attorneys experienced in the field have the advantage of having seen what can go wrong so how to anticipate avoiding the problem.