BILL NUMBER: SB 1869 CHAPTERED 09/30/00 CHAPTER 999 FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2000 APPROVED BY GOVERNOR SEPTEMBER 29, 2000 PASSED THE SENATE AUGUST 30, 2000 PASSED THE ASSEMBLY AUGUST 24, 2000 AMENDED IN ASSEMBLY AUGUST 22, 2000 AMENDED IN ASSEMBLY JUNE 13, 2000 AMENDED IN SENATE MAY 24, 2000 AMENDED IN SENATE MAY 2, 2000 INTRODUCED BY Senator Solis FEBRUARY 24, 2000 An act to amend Section 4128 of the Probate Code, relating to power of attorney. LEGISLATIVE COUNSEL'S DIGEST SB 1869, Solis. Power of attorney. Existing law provides that a power of attorney may not be construed to grant authority to an attorney-in-fact to make or revoke a gift of the principal's property in trust or otherwise unless expressly authorized in the power of attorney. Existing law also provides that a printed form of a durable power of attorney that is distributed for use by a person who does not have the advice of legal counsel shall contain a specified warning statement. This bill would revise the above-described warning statement to include a provision indicating that the person executing the durable power of attorney must specifically authorize his or her agent to receive a gift. This bill would also add a provision to the warning statement that provides notice to the person accepting an appointment under a power of attorney that describes his or her fiduciary and other legal responsibilities under the appointment and the limitations thereon, as specified. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 4128 of the Probate Code is amended to read: 4128. (a) Subject to subdivision (b), 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 shall contain, in not less than 10-point boldface type or a reasonable equivalent thereof, the following warning statements: 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. Date: ____________________________ (Signature of agent) _____________________________ (Print name of agent) (b) Nothing in subdivision (a) invalidates any transaction in which a third person relied in good faith on the authority created by the durable power of attorney. (c) This section does not apply to a statutory form power of attorney under Part 3 (commencing with Section 4400). SEC. 2. The provisions of this bill shall not affect any legally sufficient power of attorney executed prior to January 1, 2001. SEC. 3. The provisions of this bill shall not affect a durable power of attorney under Section 4128 of the Probate Code executed prior to March 1, 2001. Subsequent to March 1, 2001, all printed forms under Section 4128 of the Probate Code shall conform to the provisions of this bill.