Power of attorney, health care directive and guardianship in California

Financial power of attorney in California

Law and official form

Law

Power of Attorney Law; Uniform Statutory Form Power of Attorney Act

Uniform Power of Attorney Act

No

Official form

Uniform Statutory Form Power of Attorney (Probate Code 4401)Published by San Mateo County Law Library

You do not have to use it.

You do not have to use this form; any power of attorney that meets the signing rules is valid. If you use the statutory form, your signature must be acknowledged before a notary public. The form does not cover medical or health care decisions.

Law: Cal. Prob. Code §§ 4000, 4400; Cal. Prob. Code §§ 4401, 4402, 4408

Signing rules

How to sign

A power of attorney must be dated and signed. It must be either acknowledged before a notary public or signed by two adult witnesses. The statutory form must be notarized.

Who signs

Signed by you, or in your name by another adult in your presence and at your direction. It must show the date you signed it.

Notary

A notary or witnesses (your choice)

Witnesses

2 (instead of a notary)

Who cannot witness

Witnesses must be adults. Your agent (attorney-in-fact) cannot be a witness. Each witness must see you sign, or see you acknowledge your signature or the document.

Agent's acknowledgment

Printed durable power of attorney forms sold or handed out in California for use without a lawyer must include a notice for the agent to sign, saying they understand their legal duties. This rule does not apply to the statutory form.

Electronic signing

The Power of Attorney Law has no special rule for electronic financial powers of attorney. California's Online Notarization Act lets a notary notarize an electronic record online only after registering with the Secretary of State and after the Secretary of State completes its online notarization system, which the law requires by January 1, 2030.

Law: Gov. Code 8231-8231.20, SB 696, effective January 1, 2024

Law: Cal. Prob. Code §§ 4121, 4122, 4128, 4402(c)

Durable and springing

Is it durable?

A power of attorney keeps working after you lose capacity only if it says so, for example 'This power of attorney shall not be affected by subsequent incapacity of the principal.' A power of attorney without such words ends if you become unable to contract.

Law: Prob. Code 4124, 4155

Durable unless it says otherwise?

No: it continues after incapacity only if it says so.

Starting later (springing)

A power of attorney can start at a future time or event, such as your incapacity. You can name one or more people who decide, by a written declaration under penalty of perjury, that the event has happened.

Law: Prob. Code 4030, 4129

What an agent can and cannot do

Needs express permission

• Create, change, revoke or end a trust
• Put your property into a trust someone else created
• Make or revoke a gift of your property
• Turn down or reduce your share of an estate, trust or other fund
• Create or change survivorship interests in property
• Name or change beneficiaries who receive property when you die
• Make a loan to the agent

No power of attorney can

No power of attorney can let the agent make, change or revoke your will. A financial power of attorney does not give health care authority; that is done in an advance health care directive.

Law: Prob. Code 4265

Law: Cal. Prob. Code § 4264

Agent duties, pay and court review

Agent duties

• Act only in your interest and avoid conflicts of interest
• Use the care a prudent person would use with someone else's property
• Keep your property separate from their own
• Keep in regular contact with you and follow your instructions when reasonably practicable
• Keep records of all transactions and give an account when you ask (and in other listed cases)
• Hand over your property and records when their authority ends

Agent pay

The agent is entitled to reasonable pay and to be repaid reasonable expenses, unless the power of attorney says otherwise.

Law: Prob. Code 4204

Asking a court to review an agent

You, the agent, your spouse or a relative, a conservator, the court investigator, the public guardian and other interested persons can ask the probate court to decide whether the power of attorney is in effect, review the agent's acts, or order an accounting if the agent has not given one within 60 days of a written request.

Law: Prob. Code 4540, 4541

Law: Cal. Prob. Code §§ 4231, 4232, 4233, 4234, 4236, 4238

When it ends and how to revoke it

It ends when

• The date or event the document sets
• Its purpose is fulfilled
• You revoke it
• You die (except for limited acts the law allows after death)
• The agent is removed, resigns, becomes incapacitated or dies
• Your marriage to the agent is dissolved or annulled
• You lose capacity, if the power of attorney is not durable

Divorce ends a spouse's authority

Yes · Divorce rules in California (Divorce Law Map)

How to revoke

You can revoke a power of attorney in the way the document says, or by a writing. You can also end a particular agent's authority by telling the agent, orally or in writing, that their authority is revoked. Writing it down gives you a record.

Telling others

An agent or business that does not know about the revocation and acts in good faith is protected from liability. The statutory form says a revocation does not affect a third party until that party actually knows about it.

If it was recorded

If the power of attorney was recorded with a county recorder, a revocation of its real property powers takes effect only when the revocation is acknowledged (or proved), certified and recorded in the same recorder's office.

Law: Civil Code 1216

Law: Cal. Prob. Code §§ 4152, 4154, 4155; Cal. Prob. Code §§ 4151, 4153, 4303, 4304, 4401; Cal. Civ. Code § 1216

Banks, other states and real estate

Banks and other businesses

A business must give your agent the same rights it would give you in person, unless it could refuse you in the same situation. If a business unreasonably refuses a properly signed statutory form power of attorney, a court can order it to accept the form and award attorney's fees; refusing only because it is not the business's own form is unreasonable. A copy certified by a California lawyer or notary has the same effect as the original.

Law: Prob. Code 4300; Prob. Code 4406; Prob. Code 4307

Signed in another state

A durable power of attorney signed in another state under that state's law, or under California law, is valid in California.

Law: Prob. Code 4053

Real estate

The required notice in printed durable power of attorney forms says a power of attorney that may affect real property should be acknowledged before a notary public so it can easily be recorded.

Law: Prob. Code 4128

Health care directive in California

The document and its form

Document

Advance Health Care Directive

Official form

Advance Health Care Directive (Probate Code 4701)Published by California Office of the Attorney GeneralVersion: Fillable PDF dated September 2022

You do not have to use it.

Living will

Instructions for Health Care (Part 2 of the Advance Health Care Directive)

Part of the directive.

California does not use a separate living will form. You write your treatment wishes, such as about life support and pain relief, in Part 2 of the advance health care directive. You can fill in Part 2 even if you do not name an agent. Individual instructions can also be oral.

Law: Cal. Prob. Code §§ 4700, 4701; Cal. Prob. Code §§ 4670, 4701

Signing rules

How to sign

Sign and date the directive. Then either have it notarized or have two qualified adult witnesses sign it. In a skilled nursing facility, an ombudsman or patient advocate must also witness it.

Who signs

Signed by you, or in your name by another adult in your presence and at your direction, and dated.

Notary

A notary or witnesses (your choice)

Witnesses

2 (instead of a notary)

Who cannot witness

Witnesses must be adults who see you sign or acknowledge the directive, and must sign a declaration. These people cannot be witnesses: your health care provider or their employee, the operator or an employee of a community care facility or residential care facility for the elderly, and your health care agent. At least one witness must not be related to you by blood, marriage or adoption and must not inherit from you.

Nursing facilities and special settings

If you live in a skilled nursing facility when you sign, a patient advocate or ombudsman must also sign as a witness (as one of the two witnesses or in addition to a notary).

Electronic signing

An electronic advance health care directive must be acknowledged before a notary public, and a digital signature must meet the rules in Probate Code 4673(b).

Law: Cal. Prob. Code §§ 4673, 4674, 4675

Who can be your agent and what the agent can do

Who cannot be your agent

Your supervising health care provider, an employee of the health care institution where you receive care, and an operator or employee of a community care or residential care facility where you receive care cannot be your agent, unless they are related to you (by blood, marriage, adoption or registered domestic partnership) or are a coworker (an employee other than your supervising provider). A mental health (LPS) conservator can be named only if you have a lawyer who signs a certificate on the directive.

Law: Prob. Code 4659

When the agent starts

Unless the directive says otherwise, the agent's authority starts only when your primary physician determines that you lack capacity, and stops when you recover capacity. You can choose to let the agent act right away.

Law: Prob. Code 4658, 4682

Decisions an agent cannot make

An agent cannot consent for you to placement in a mental health treatment facility, convulsive treatment, psychosurgery, sterilization or abortion. An agent cannot make a decision you object to.

Law: Prob. Code 4652; Prob. Code 4689

Revoking and conflicting documents

Revoking your agent

You can revoke your choice of agent only by a signed writing or by personally telling your supervising health care provider.

Revoking your instructions

You can revoke the rest of the directive at any time and in any way that shows you want to revoke it.

Telling others

A provider, agent, conservator or surrogate who learns of the revocation must promptly tell your supervising health care provider and any health care institution where you are receiving care.

Divorce ends a spouse's authority

Yes · Divorce rules in California (Divorce Law Map)

Conflicting documents

A newer advance health care directive revokes an older one to the extent they conflict.

Law: Prob. Code 4698

Law: Cal. Prob. Code §§ 4695, 4696, 4697

If you have no directive

Who decides without a directive

If you lack capacity and have none of these, a health care provider or facility designee may choose an adult surrogate who has shown special care and concern for you and knows your values. The surrogate can be chosen from your spouse or domestic partner, an adult child, a parent, an adult sibling, an adult grandchild, or an adult relative or close personal friend. You can disqualify someone from acting as your surrogate by a signed writing or by telling your supervising health care provider.

• A surrogate you named by telling your supervising health care provider
• Your agent under an advance health care directive or power of attorney for health care
• Your conservator or guardian with health care authority

Law: Cal. Prob. Code §§ 4711, 4712, 4715

Other states, registry and medical orders

Signed in another state

An advance directive signed in another state under that state's law, or under California law, is valid in California.

Law: Prob. Code 4676

Registry

Advance Health Care Directive Registry (California Secretary of State)

Fee: $10 to register a directive, including a new or amended directive. No fee to change the information on your registration or to revoke the registration. Registration is by mail only, on the Registration of Written Advance Health Care Directive form.

POLST (medical orders)

Physician Orders for Life Sustaining Treatment (POLST), approved by the Emergency Medical Services Authority

Mental health directive

You can make a standalone psychiatric advance directive that records your mental health treatment preferences. It must follow the same signing rules as an advance health care directive.

Law: Prob. Code 4679

Law: Cal. Prob. Code §§ 4800-4805; Cal. Prob. Code § 4780

Guardianship and conservatorship in California

What guardianship or conservatorship is

What it is called

Conservatorship of the person, conservatorship of the estate, limited conservatorship (for adults with developmental disabilities)

When a court may appoint one

A conservator of the person may be appointed for someone unable to provide properly for their personal needs for physical health, food, clothing or shelter. A conservator of the estate may be appointed for someone substantially unable to manage their own finances or resist fraud or undue influence. The court must find that conservatorship is the least restrictive alternative needed, after considering supports such as supported decision-making agreements, powers of attorney, health care surrogates and advance health care directives.

Kinds

• General conservatorship of the person, the estate, or both
• Limited conservatorship for an adult with a developmental disability (up to 7 specific powers)
• Temporary conservatorship while the main petition is pending
• Mental health (LPS) conservatorship, recommended by mental health professionals and filed by the county conservatorship investigator, not by family

Law: Cal. Prob. Code §§ 1800.3, 1801, 1810, 1820, 1821

Who can ask, which court and your own choice

Who may ask

The person themselves, their spouse or domestic partner, a relative, an interested state or local agency or public officer, or any other interested person or friend. A creditor cannot petition unless they are one of these.

Court

Probate department of the superior court, generally in the county where the adult lives.

Choosing your own

While you have capacity you can nominate your future conservator in a durable power of attorney or another signed writing. The court must appoint your nominee unless that is not in your best interests.

Law: Prob. Code 1810, 4126

Effect on a power of attorney

If a conservator of the estate is appointed, the agent under a durable power of attorney must also account to the conservator. A California conservator can revoke or change the power of attorney only with a court order.

Law: Prob. Code 4206

Cost, fee waiver and forms

Filing fee

Filing fees start at $435, plus an investigation fee set by each court.

Source: California Courts self-help guide

Fee waiver

Request to Waive Court Fees, based on the proposed conservatee's income, not the petitioner's. If granted, it also covers the investigation costs.

Source: form FW-001-GC

Forms

• GC-310 Petition for Appointment of Probate Conservator
• GC-312 Confidential Supplemental Information
• GC-314 Confidential Conservator Screening Form
• GC-320 Citation for Conservatorship
• GC-020 Notice of Hearing
• GC-348 Duties of Conservator
• GC-335 Capacity Assessment and Declaration
• FW-001-GC Request to Waive Court Fees (guardianship or conservatorship)
• FW-003-GC Order on Court Fee Waiver

Steps

Steps

Other options and where to report abuse

Supported decision-making

Supported decisionmaking agreements

Effective January 1, 2023

An adult with a disability can choose trusted supporters to help them understand, make and communicate their own decisions. The adult keeps the right to decide, and signing an agreement cannot be used as evidence of incapacity. Either side can end it at any time, orally or in writing. You also have the right to bring supporters to meetings with doctors, banks and service providers.

A written agreement in plain language, signed by the adult with a disability and each supporter in front of two adult disinterested witnesses or a notary public.

Source: Official text

Less restrictive options

• Supported decision-making: Trusted people help the person make their own decisions. No court is involved.
• Power of attorney: The person names someone to handle financial or legal matters. No automatic court oversight.
• Advance health care directive: The person names a health care agent and writes treatment wishes, including mental health care.
• Representative payee: A person or organization appointed by Social Security manages Social Security or SSI payments.
• Special needs trust or CalABLE account: Money is set aside for a person with a disability so they can keep public benefits.

Report abuse or exploitation

County Adult Protective Services (California Department of Social Services) · 1-833-401-0832

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: Cal. Welf. & Inst. Code §§ 21001, 21003, 21004, 21005, 21006

Good to know in California

• A financial power of attorney is not durable in California unless it says it continues after incapacity.

  Law: Prob. Code 4124

• Since January 1, 2023, if you lack capacity and have no agent, conservator or named surrogate, a health care provider can choose a surrogate from your family or close friends. You can also name a surrogate just by telling your doctor; that lasts for the current illness or stay, or 60 days, whichever is shorter.

  Law: Prob. Code 4712, AB 2338; Prob. Code 4711

• Since January 1, 2024, the statutory directive form covers mental health care, and you can make a standalone psychiatric advance directive.

  Law: Prob. Code 4617, 4679, 4701, AB 1029

• Registering a directive with the Secretary of State is voluntary; an unregistered directive is still valid.

  Law: Prob. Code 4803

Changes in 2024–2026

AB 1029, effective January 1, 2024: health care decisions and the statutory advance health care directive form now cover mental health care, and Probate Code 4679 recognizes standalone psychiatric advance directives. SB 696, effective January 1, 2024: Online Notarization Act; online notarization starts only after notary registration and the Secretary of State's system (due by January 1, 2030). SB 1106, effective January 1, 2025, amended conservatorship sections 2352, 2361 and 2700. No 2024-2026 amendments to the Power of Attorney Law, the advance directive execution sections (4670-4701) or the supported decisionmaking law.

Law: Stats. 2023, ch. 171; Stats. 2023, ch. 291; Gov. Code 8231 and following; Stats. 2024, ch. 455; Probate Code 4000-4545; Welf. & Inst. Code 21000-21008

Questions about powers of attorney in California