DATE: November 30, 2000
SUBJECT: Warning Statement on Durable Powers of Attorney
Note that this memo applies only to durable powers of attorney (i.e. a power of attorney providing that it does not terminate upon the subsequent incapacity of the principal).
Existing Probate Code Section 4128 requires a warning notice on "a printed form of a durable power of attorney that is sold or otherwise distributed in this state for use by a person who does not have the advice of legal counsel". The warning statement has been amended by Senate Bill 1869 (Ch. 999). The new statement is required on all durable powers of attorney executed after March 1, 2001.
Many attorneys drafting a durable power of attorney include the warning statement, even though the law does not apply to them. When we are not dealing directly with an attorney for the principal, we will consider the warning statement to be a requirement for all durable powers of attorney, pre-printed or not. The only exception to this rule is that Section 4128 does not apply to a "statutory form power of attorney" which is set forth word-for-word in Probate Code Section 4401.
Remember that relying on powers of attorney requires caution. Relying on the durable feature of a power of attorney requires extreme caution. Relying on the durability of a power of attorney where an attorney is not involved requires an even higher level of extreme caution.
The warning notice must be in 10-point, boldface type and it must be signed by the attorney in fact. While the statute does not require the attorney in factís signature to be notarized, the County Recorder will require it.
The notice is set forth below in the minimum required type size.
Notice required by Probate Code Section 4128:
Notice to Person Executing Durable Power of Attorney
A durable power of attorney is an important legal document. By signing the durable power of attorney, you are authorizing another person to act for you, the principal. Before you sign this durable power of attorney, you should know these important facts:
Your agent (attorney-in-fact) has no duty to act unless you and your agent agree otherwise in writing.
This document gives your agent the powers to manage, dispose of, sell, and convey your real and personal property, and to use your property as security if your agent borrows money on your behalf. This document does not give your agent the power to accept or receive any of your property, in trust or otherwise, as a gift, unless you specifically authorize the agent to accept or receive a gift.
Your agent will have the right to receive reasonable payment for services provided under this durable power of attorney unless you provide otherwise in this power of attorney.
The powers you give your agent will continue to exist for your entire lifetime, unless you state that the durable power of attorney will last for a shorter period of time or unless you otherwise terminate the durable power of attorney. The powers you give your agent in this durable power of attorney will continue to exist even if you can no longer make your own decisions respecting the management of your property.
You can amend or change this durable power of attorney only by executing a new durable power of attorney or by executing an amendment through the same formalities as an original. You have the right to revoke or terminate this durable power of attorney at any time, so long as you are competent.
This durable power of attorney must be dated and must be acknowledged before a notary public or signed by two witnesses. If it is signed by two witnesses, they must witness either (1) the signing of the power of attorney or (2) the principal's signing or acknowledgment of his or her signature. A durable power of attorney that may affect real property should be acknowledged before a notary public so that it may easily be recorded.
You should read this durable power of attorney carefully. When effective, this durable power of attorney will give your agent the right to deal with property that you now have or might acquire in the future. The durable power of attorney is important to you. If you do not understand the durable power of attorney, or any provision of it, then you should obtain the assistance of an attorney or other qualified person.
Notice to Person Accepting the Appointment as Attorney-in-Fact
By acting or agreeing to act as the agent (attorney-in-fact) under this power of attorney you assume the fiduciary and other legal responsibilities of an agent. These responsibilities include:
1. The legal duty to act solely in the interest of the principal and to avoid conflicts of interest.
2. The legal duty to keep the principal's property separate and distinct from any other property owned or controlled by you.
You may not transfer the principal's property to yourself without full and adequate consideration or accept a gift of the principal's property unless this power of attorney specifically authorizes you to transfer property to yourself or accept a gift of the principal's property. If you transfer the principal's property to yourself without specific authorization in the power of attorney, you may be prosecuted for fraud and/or embezzlement. If the principal is 65 years of age or older at the time that the property is transferred to you without authority, you may also be prosecuted for elder abuse under Penal Code Section 368. In addition to criminal prosecution, you may also be sued in civil court.
I have read the foregoing notice and I understand the legal and fiduciary duties that I assume by acting or agreeing to act as the agent (attorney-in-fact) under the terms of this power of attorney.
(Signature of agent)
(Print name of agent)