I have seen this question a lot. A loved one creates a Durable Power of Attorney in the case of incapacity so a family member can handle the financial affairs of the incapacitated principal. The agent to act may come into my office saying the loved one did not prepare a living trust or even a will, but created a Durable Power of Attorney for financial affairs and an Advance Health Care Directive, which gave the agent authority to act after the principal’s death. These family members are generally in for a rude awakening that these documents, contrary to what they say about the agent’s authority, are of limited value and use after the principal’s death due to Power of Attorney law in California.
Under Probate Code § 4152, a power of attorney over a principal is terminated by death of the principal. The code does permit, however, an agent to act under the power of attorney after death if there is specific authority permitted by statute. An example of an exception is under Health and Safety Code § 7100, where an agent with an Advance Health Care Directive with instructions on disposing of bodily remains of the principal has priority and authority to act with the principal’s wishes after death.
The moral of the story is that at the bare minimum, all persons 18 years or older need to have a prepared will-based estate plan to ensure their wishes are carried out. If you or your loved ones own real property valued at more than $150,000.00, you need to consider having a living or revocable trust-based estate plan prepared to carry out your wishes so you can avoid delays in probate court and to ensure your legal counsel doesn’t become an unintended beneficiary of your estate by paying statutory probate attorney’s fees. Proper planning ahead of time can save your family thousands of dollars and ensure they are well taken care of.
