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