What is a durable power of attorney in California?

What the Law Says

California law defines and governs durable powers of attorney for finances and healthcare separately. A 'durable' power of attorney remains effective even if the person who created it (the 'principal') becomes incapacitated — unlike a non-durable one, which ends upon incapacity.

For financial matters, California Probate Code § 4120 defines a durable power of attorney as one that 'is not affected by the principal's subsequent incapacity.' It must contain specific language stating that it is durable — typically: 'This power of attorney shall not be affected by my subsequent incapacity.'

Under Probate Code § 4121, a durable power of attorney for finances must be in writing, signed by the principal (or by another at the principal’s direction), and either acknowledged before a notary public or signed by at least two witnesses.

For healthcare decisions, the Advance Health Care Directive (AHCD) serves as the durable power of attorney for health care. Probate Code § 4670 requires it to be signed by the principal and either notarized or witnessed by two qualified adults.

Statutory Text

A durable power of attorney is not affected by the principal's subsequent incapacity.

— Probate Code § 4120 — Definition of durable power of attorney

Statutory Text

The power of attorney must contain the words 'This power of attorney shall not be affected by my subsequent incapacity.'

— Probate Code § 4121 — Requirements for durability

Statutory Text

An advance health care directive may be signed by the principal and either acknowledged before a notary public or signed by at least two witnesses.

— Probate Code § 4670 — Execution of advance health care directive

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