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Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 29242
Experience:  29 years in civil, probate, real estate, elder law
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In California, when a Power Of Attorney is essentially revoke

Resolved Question:

In California, when a Power Of Attorney is essentially revoke by divorce, if there is an alternate listed, does the POA remain valid with the alternate automatically becoming the agent?
Submitted: 11 months ago.
Category: Legal
Expert:  Ray replied 11 months ago.

RayAnswers :

Thanks for your question and good evening.

RayAnswers :

A power of attorney here is not automatically revoked because of a divorce here in California.

RayAnswers :

If the ex spouse does not want to serve they can decline to act as the POA.Then the alternate could act as the POA in the event of disability.

RayAnswers :

The POA here remains valid the issue is whether the ex wants to act as POA.If they decline to do so the alternate can then act on behalf of the dying friend here.

RayAnswers :

Ideally here the alternate should have the orginal POA sign a revocation here.

RayAnswers :

Here is the law for reference about revoking a POA in California.

RayAnswers :

4150. (a) A principal may modify a power of attorney as follows: (1) In accordance with the terms of the power of attorney. (2) By an instrument executed in the same manner as a power of attorney may be executed. (b) An attorney-in-fact or third person who does not have notice of the modification is protected from liability as provided in Chapter 5 (commencing with Section 4300). 4151. (a) A principal may revoke a power of attorney as follows: (1) In accordance with the terms of the power of attorney. (2) By a writing. This paragraph is not subject to limitation in the power of attorney. (b) An attorney-in-fact or third person who does not have notice of the revocation is protected from liability as provided in Chapter 5 (commencing with Section 4300). 4152. (a) Subject to subdivision (b), the authority of an attorney-in-fact under a power of attorney is terminated by any of the following events: (1) In accordance with the terms of the power of attorney. (2) Extinction of the subject or fulfillment of the purpose of the power of attorney. (3) Revocation of the attorney-in-fact's authority, as provided in Section 4153. (4) Death of the principal, except as to specific authority permitted by statute to be exercised after the principal's death. (5) Removal of the attorney-in-fact. (6) Resignation of the attorney-in-fact. (7) Incapacity of the attorney-in-fact, except that a temporary incapacity suspends the attorney-in-fact's authority only during the period of the incapacity. (8) Dissolution or annulment of the marriage of the attorney-in-fact and principal, as provided in Section 4154. (9) Death of the attorney-in-fact. (b) An attorney-in-fact or third person who does not have notice of an event that terminates the power of attorney or the authority of an attorney-in-fact is protected from liability as provided in Chapter 5 (commencing with Section 4300). 4153. (a) The authority of an attorney-in-fact under a power of attorney may be revoked as follows: (1) In accordance with the terms of the power of attorney. (2) Where the principal informs the attorney-in-fact orally or in writing that the attorney-in-fact's authority is revoked or when and under what circumstances it is revoked. This paragraph is not subject to limitation in the power of attorney. (3) Where the principal's legal representative, with approval of the court as provided in Section 4206, informs the attorney-in-fact in writing that the attorney-in-fact's authority is revoked or when and under what circumstances it is revoked. This paragraph is not subject to limitation in the power of attorney. (b) An attorney-in-fact or third person who does not have notice of the revocation is protected from liability as provided in Chapter 5 (commencing with Section 4300). 4154. (a) If after executing a power of attorney the principal's marriage to the attorney-in-fact is dissolved or annulled, the principal's designation of the former spouse as an attorney-in-fact is revoked. (b) If the attorney-in-fact's authority is revoked solely by subdivision (a), it is revived by the principal's remarriage to the attorney-in-fact. 4155. (a) Subject to subdivision (b), the authority of an attorney-in-fact under a nondurable power of attorney is terminated by the incapacity of the principal to contract. (b) An attorney-in-fact or third person who does not have notice of the incapacity of the principal is protected from liability as provided in Chapter 5 (commencing with Section 4300). (c) This section is not subject to limitation in the power of attorney.

RayAnswers :

The named person can revoke it in writing by instrument see(2) above.

RayAnswers :

I appreciate the chance to assist you tonight.Please let me know if you have more follow up.Thanks for letting me help you.

RayAnswers :

And I need to supplement here under the law the item 8 here-- (8) Dissolution or annulment of the marriage of the attorney-in-fact and principal, as provided in Section 4154 terminates the POA to the ex so that a copy of the divorce decree and the POA original ought to suffice for any financial or other activities that the alternate needs to conduct with say banks or related places.

RayAnswers :

The law here excludes the need for the original POA to have to sign a relinquishment.

RayAnswers :

So the law would allow for the altenate to prove up the divorce through a certified copy of the decree and the signed POA hereunder he law above.

RayAnswers :

I am so sorry about your friend here and his condition.I know that can be hard to go through.

Customer:

So, in plain English, can/does the alternate automatically assume the position of agent for the principle on a POA doc filed in California...thanks

RayAnswers :

Yes as per the statute.I would print this . along with the decree you can get it from the courthouse where the divorce was granted or the person may have one and the POA.This should allow the alternate to do what they need to do.

RayAnswers :

When we are done and you leave a positive rating you will get an email of our chat you can print here.

RayAnswers :

The divorce is considered a revocation by the original POA.

Customer:

ok, so once a divorce decree is provided the alternate can assume the agent position, but not until that decree is provided?

RayAnswers :

Well you can try here without it but they may require it.Do you know where they were divorced I can get you contact information.

RayAnswers :

Here you can get the divorce decree if it was in California.

RayAnswers :

I wish you the best in all of this.

RayAnswers :

Thanks for letting me help here.

Customer:

Divorced in Calif....i have read on thre diff sites that it is an automatic revocation of the POA when the spouses divorce from one another....the stick part for me is: the the listed alternate then get to assume as agent immediately? Divorce decree or no divorce decree?

RayAnswers :

Yes the alternate could do so immediately .They may not question the divorce but you can order the decree if you have too.

Customer:

and what code does that fall under, so I may reference...thanks

RayAnswers :

I honestly do not think they will challenge this usually they are grateful there is an alternate and someone to assume the fiancial and other powers since the person is incapacitated.

RayAnswers :

Here this is the probate code here is more.

RayAnswers :

PROBATE CODE
SECTION 4260-4266


4260. (a) Except as specified in subdivision (b), this article applies to all powers of attorney under this division. (b) Sections 4261 and 4263 do not apply to the provisions of Part 3 (commencing with Section 4400). 4261. If a power of attorney grants general authority to an attorney-in-fact and is not limited to one or more express actions, subjects, or purposes for which general authority is conferred, the attorney-in-fact has all the authority to act that a person having the capacity to contract may carry out through an attorney-in-fact specifically authorized to take the action. 4262. Subject to this article, if a power of attorney grants limited authority to an attorney-in-fact, the attorney-in-fact has the following authority: (a) The authority granted in the power of attorney, as limited with respect to permissible actions, subjects, or purposes. (b) The authority incidental, necessary, or proper to carry out the granted authority. 4263. (a) A power of attorney may grant authority to the attorney-in-fact by incorporating powers by reference to another statute, including, but not limited to, the following: (1) Powers of attorneys-in-fact provided by the Uniform Statutory Form Power of Attorney Act (Part 3 (commencing with Section 4400)). (2) Powers of guardians and conservators provided by Chapter 5 (commencing with Section 2350) and Chapter 6 (commencing with Section 2400) of Part 4 of Division 4. (3) Powers of trustees provided by Chapter 2 (commencing with Section 16200) of Part 4 of Division 9. (b) Incorporation by reference to another statute includes any amendments made to the incorporated provisions after the date of execution of the power of attorney. 4264. An attorney-in-fact under a power of attorney may perform any of the following acts on behalf of the principal or with the property of the principal only if the power of attorney expressly grants that authority to the attorney-in-fact: (a) Create, modify, revoke, or terminate a trust, in whole or in part. If a power of attorney under this division empowers the attorney-in-fact to modify or revoke a trust created by the principal, the trust may be modified or revoked by the attorney-in-fact only as provided in the trust instrument. (b) Fund with the principal's property a trust not created by the principal or a person authorized to create a trust on behalf of the principal. (c) Make or revoke a gift of the principal's property in trust or otherwise. (d) Exercise the right to reject, disclaim, release, or consent to a reduction in, or modification of, a share in, or payment from, an estate, trust, or other fund on behalf of the principal. This subdivision does not limit the attorney-in-fact's authority to disclaim a detrimental transfer to the principal with the approval of the court. (e) Create or change survivorship interests in the principal's property or in property in which the principal may have an interest. (f) Designate or change the designation of beneficiaries to receive any property, benefit, or contract right on the principal's death. (g) Make a loan to the attorney-in-fact. 4265. A power of attorney may not authorize an attorney-in-fact to make, publish, declare, amend, or revoke the principal's will. 4266. The grant of authority to an attorney-in-fact, whether by the power of attorney, by statute, or by the court, does not in itself require or permit the exercise of the power. The exercise of authority by an attorney-in-fact is subject to the attorney-in-fact's fiduciary duties.



RayAnswers :

The sectiohn I gave you first about divorce is found here.

RayAnswers :

PROBATE CODE
SECTION 4150-4155

RayAnswers :

And you can print the chat here with the reference once you rate, thanks again.

Customer:

ok, well thank you for the info.

RayAnswers :

You are so welcome.

RayAnswers :

Good luck with all here.

Ray, Lawyer
Category: Legal
Satisfied Customers: 29242
Experience: 29 years in civil, probate, real estate, elder law
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