As the parent of a minor child you are undoubtedly always thinking of your child and planning for emergencies. Like most parents, there will likely be times when you need to leave your child with a caregiver – possibly even for days at a time if you go out of town on business, or just for an “adults only” vacation. Although you likely do not want to consider the possibility, there is always a chance that your child will suffer and accident or illness and need medical care while you are gone. Absent pre-planning on your part, however, your caregiver is not legally entitled to consent to medical treatment for your child. Executing a California power of attorney will give your caregiver that authority though. Although you may already be familiar with the concepts involved in a power of attorney, you need to know which type of California power of attorney is right for your needs.
What Is a Power of Attorney?
The general legal concept behind all types of powers of attorney is the same. A power of attorney, or POA, allows a Principal (you in this case) to grant legal authority to an Agent (your caregiver in this case) to act on behalf of the Principal in legal matters. The type and extent of the authority the Principal grants to the Agent under the terms of a POA will depend on what type of POA the Principal executes.
General vs. Specific Power of Attorney?
There are two basic categories of POAs – general and specific. A general power of attorney grants very broad authority to the Agent. In essence, when you give someone your genera power of attorney it means that the individual steps into your shoes and becomes you, for the purpose of exercising legal authority. Typically, the only limit to the way in which an Agent may use the authority granted under a general POA is statutory. Most states have a power of attorney statute that enumerates certain power or authority that cannot be granted to an Agent, even under a general POA.
A “specific” power of attorney, also referred to as a “limited power of attorney” operates under the same basic concepts as a general POA except that it only grants specific authority or power to the Agent.
Durable and Springing POA
Two other terms you need to be familiar with if you plan to create a power of attorney are “durable” and “springing.” Originally, the power granted by a POA would terminate upon the death or incapacity of the Principal. Of course, one of the reasons people often want a POA in place is to ensure that someone they trust can step into their shoes in the event they become incapacitated for any period of time. The solution was the evolution of the “durable” power of attorney which survives the incapacity of the Principal.
A “springing” power of attorney is one in which the authority granted to the Agent does not activate until a specific event occurs. In essence, the powers granted “spring” into effect. Your own incapacity, for example, could trigger the power granted in a springing power of attorney.
Power of Attorney for Healthcare
Like most states, California recognizes certain types of advanced directives. A California power of attorney for healthcare is one of those advanced directives. If you execute a California power of attorney for healthcare you are appointing someone who will have the legal authority to make decisions for you regarding your own medical treatment if you “lack the ability to understand the nature and consequences of your health care decisions or the ability to make and communicate your health care decisions.”
Which Power of Attorney Is Right for You?
Now that you understand the different types of powers of attorney better, you need to consider which one is best suited to your needs as the parent of a minor child. To be certain you choose the right type of POA, and that the language you use in your POA document reflects your intentions, be sure to discuss your need for a power of attorney with your California estate planning attorney.
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