Legal Question in Wills and Trusts in California

Re: Power of Attorney Without Principal's Authority

Yes, she needs to go to court and be named a conservator. See the Probate code.

Re: Power of Attorney Without Principal's Authority (conservatorship)

Powers of attorney (for health care and/or finances) must be given directly by the principal. Thus, the principal must have the capacity to understand what he or she is doing and then execute the document (power of attorney).

California law does allow a spouse some control over community property, but the reality is that the spouse (or someone else) will have to petition the court to be appointed conservator. The conservator, under the guidance of the court and Probate Code, can make decisions on the principal's behalf.

A conservatorship will probably require an attorney, but the conservatorship rules are covered in the California Probate Code at sections 1400-3925.

Re: Power of Attorney Without Principal's Authority

A power of attorney is usually granted by the principal directly. If the principal is unable to name an attorney-in-fact, the proposed attorney-in-fact must go to the court to be appointed. If appointed by the court, they become the conservator of the person and/or estate of the principal. Being a conservator is more formal than being an attorney-in-fact in that conservators are monitered by the court and are required to do accountings.