San Diego Estate Planning Attorney

A power of attorney is where one person (called the “principal”) appoints another person (called the “agent” or “attorney in fact”) to act on his or her behalf. There are a few different types of powers of attorney.

Powers of attorney can be general or specific. In a specific power of attorney the principal authorizes the agent only to do certain, limited acts. In a general power of attorney, the principal essentially authorizes the agent to do any legal act on behalf of the principal that the principal could do for himself or herself.

Powers of attorney (whether a specific or general power of attorney) are “durable” or “nondurable”.  A nondurable power of attorney ceases to be effective if the principal becomes incompetent. Because of this, nondurable powers of attorney are very rare.

There are two types of durable powers of attorney. One type is often called a “Currently Effective Durable Power of Attorney.” In such a power of attorney (whether general or specific), the agent has immediate authority to act on behalf of the principal and such authority survives the principal’s incompetency. The other type is called a “Springing Power of Attorney.” In this type of power of attorney, the agent does not have any current authority to act on behalf of the principal. However, if and when the principal becomes incompetent, then the agent has the authority to act on behalf of the principal. In other words, the agent’s authority “springs” to life upon the principal’s incompetency.  Incompetency can be established by a judicial determination of such. However, it is much more commonly determined upon the written certification of one or two physicians.

In an Advance Health Care Directive (formerly called a “Power of Attorney for Health Care” in California), the principal appoints the agent to make medical or health care related decisions for the principal if the principal is unable to make those decisions for himself or herself. Such decisions to be made by the agent may include whether or not heroic measures will be undertaken to keep the principal alive even if there is little or no chance of recovery. Stated another way, the agent may be given the authority to “pull the plug” on the principal thereby allowing him or her to die naturally rather than being kept alive artificially.