General Durable Power of Attorney for Property and Finances or Financial Effective Immediately
GENERAL DURABLE POWER OF ATTORNEY
(PROBATE CODE,§§4124-27;§4206, §4304, §4305)>
Section 4124: A durable power of attorney
is a power of attorney by which a principal designates another person as
attorney-in-fact in writing and the power of attorney contains any of the
following statements:
(a) "This power of attorney shall not be affected by subsequent
incapacity of the principal."
(b) "This power of attorney shall become effective upon the incapacity
of the principal."
(c) Similar words showing the intent of the principal that the
authority conferred shall be exercisable notwithstanding the principal's
subsequent incapacity.
Section 4125: All acts done by an attorney-in-fact
pursuant to a durable power of attorney during any period of incapacity
of the principal have the same effect and inure to the benefit of and bind
the principal and the principal's successors in interest as if the principal
had capacity.
Section 4126: (a) A principal may nominate, by a durable
power of attorney, a conservator of the person or estate or both, or a
guardian of the person or estate or both, for consideration by the court
if protective proceedings for the principal's person or estate are thereafter
commenced.
(b) If the protective proceedings are conservatorship proceedings
in this state, the nomination has the effect provided in Section 1810 and
the court shall give effect to the most recent writing executed in accordance
with Section 1810, whether or not the writing is a durable power of attorney.
Section 4127: Unless a power of attorney states a time of
termination, the authority of the attorney-in-fact is exercisable notwithstanding
any lapse of time since execution of the power of attorney.
Section 4206: (a) If, following execution of a durable power
of attorney, a court of the principal's domicile appoints a conservator
of the estate, guardian of the estate, or other fiduciary charged with
the management of all of the principal's property or all of the principal's
property except specified exclusions, the attorney-in-fact is accountable
to the fiduciary as well as to the principal.Except as provided in subdivision
(b), the fiduciary has the same power to revoke or amend the durable power
of attorney that the principal would have had if not incapacitated, subject
to any required court
approval.
(b) If a conservator of the estate is appointed by a court of this
state, the conservator can revoke or amend the durable power of attorney
only if the court in which the conservatorship proceeding is pending has
first made an order authorizing or requiring the fiduciary to modify or
revoke the durable power of attorney and the modification or revocation
is in accord with the order.
(c) This section is not subject to limitation in the power of attorney.
Section 4304: (a) The death of a principal who has executed
a power of attorney, whether durable or nondurable, does not revoke or
terminate the agency as to the attorney-in-fact or a third person who,
without actual knowledge of the principal's death, acts in good faith under
the power of attorney. Any action so taken, unless otherwise invalid
or unenforceable, binds the principal's successors in interest.
(b) The incapacity of a principal who has previously executed a
nondurable power of attorney does not revoke or terminate the agency as
to the attorney-in-fact or a third person who, without actual knowledge
of the incapacity of the principal, acts in good faith under the power
of attorney. Any action so taken, unless otherwise invalid or unenforceable,
binds the principal and the principal's successors in interest.
Section 4305: (a) As to acts undertaken in good faith reliance
thereon, an affidavit executed by the attorney-in-fact under a power of
attorney, whether durable or nondurable, stating that, at the time of the
exercise of the power, the attorney-in-fact did not have actual knowledge
of the termination of the power of attorney or the attorney-in-fact's authority
by revocation or of the principal's death or incapacity is conclusive proof
of the nonrevocation or nontermination of the power at that time.
If the exercise of the
power of attorney requires execution and delivery of any instrument
that is recordable, the affidavit when authenticated for record is likewise
recordable.
(b) This section does not affect any provision in a power of attorney
for its termination by expiration of time or occurrence of an event other
than express revocation or a change in the principal's capacity.
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