What is a Power of Attorney?
In California, powers of attorney are defined in, and gov- erned by, the Probate Code. Tis may seem counter-intu- itive, since a power of attorney is only effective during the lifetime of the principal—unlike a will, which is effective only after death. However, a power of attorney is an impor- tant part of estate and incapacity planning, and makes sense in the context of laws governing how one person may legally manage the property and affairs of another.
Probate Code section 4022 defines a power of attorney as “a written instrument, however denominated, that is executed by a natural person having the capacity to contract and that grants authority to an attorney-in-fact.” Te power of attor- ney can be either durable or non-durable, meaning it either remains or becomes effective during the principal’s incapac- ity (durable), or it does not (non-durable).
Te person who executes a power of attorney is called the “principal.” Te person receiving the authority to act, as mentioned above, is called the “attorney-in-fact.”
All acts
authorized by the power of attorney and performed by the attorney-in-fact have the same effect as if the principal had personally performed them.
What are the Elements of a Valid Power of Attorney?
Now that an attorney-in-fact may vote on behalf of a principal who is an association member, the challenge for associations and their managers is how to identify a whether a particular power of attorney is valid. Since the new law prohibits denial of a ballot to someone claiming to have power of attorney for a member, associations need to tread carefully in this area. As always, an association can and should consult with its at- torney to make an accurate determination regarding the legal sufficiency of any document, but in this situation, there are a few baseline formalities that can be readily identified.
An association representative or manager should look for the following key elements to determine whether an alleged attor- ney-in-fact has provided a legally sufficient power of attorney:
1. Is the power of attorney personally signed by the principal? If not, does it clearly state that it was signed by another adult per- son in the principal’s presence, and at the principal’s direction?
2. Does the power of attorney contain the date of execution (signing)?
3. Is the power of attorney either (1) notarized OR (2) signed by at least two witnesses, neither of whom is the designated attorney-in-fact?
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