If you have a question or dispute about how a power of attorney operates, or how it should be or is being used, the California Probate Code allows almost anyone to file a petition with the Court for instructions or other remedies. See the provisions of Probate Code Sections 4540 and 4541 below.
Also note, there are powers of attorney for financial and asset management, and powers of attorney for health care and daily living – although some of the provisions are similar, there are important differences. And, perhaps outside of common knowledge, it is not always clear when, for how long, and for what decision making a person can become and becomes an attorney in fact, what decisions can be made, what decisions are legally prudent, and what people and resources, including the principal, might be or in circumstances should be or must be consulted about the matter at hand and possible options for decision making.
California Probate Code Section 4540 provides as follows:
Subject to Section 4503, a petition may be filed under this part by any of the following persons:
(a) The attorney-in-fact.
(b) The principal.
(c) The spouse of the principal.
(d) A relative of the principal.
(e) The conservator of the person or estate of the principal.
(f) The court investigator, described in Section 1454, of the county where the power of attorney was executed or where the principal resides.
(g) The public guardian of the county where the power of attorney was executed or where the principal resides.
(h) The personal representative or trustee of the principal’s estate.
(i) The principal’s successor in interest.
(j) A person who is requested in writing by an attorney-in-fact to take action.
(k) Any other interested person or friend of the principal.
California Probate Code Section 4541 provides as follows:
A petition may be filed under this part for any one or more of the following purposes:
(a) Determining whether the power of attorney is in effect or has terminated.
(b) Passing on the acts or proposed acts of the attorney-in-fact, including approval of authority to disobey the principal’s instructions pursuant to subdivision (b) of Section 4234.
(c) Compelling the attorney-in-fact to submit the attorney-in-fact’s accounts or report the attorney-in-fact’s acts as attorney-in-fact to the principal, the spouse of the principal, the conservator of the person or the estate of the principal, or to any other person required by the court in its discretion, if the attorney-in-fact has failed to submit an accounting or report within 60 days after written request from the person filing the petition.
(d) Declaring that the authority of the attorney-in-fact is revoked on a determination by the court of all of the following:
(1) The attorney-in-fact has violated or is unfit to perform the fiduciary duties under the power of attorney.
(2) At the time of the determination by the court, the principal lacks the capacity to give or to revoke a power of attorney.
(3) The revocation of the attorney-in-fact’s authority is in the best interest of the principal or the principal’s estate.
(e) Approving the resignation of the attorney-in-fact:
(1) If the attorney-in-fact is subject to a duty to act under Section 4230, the court may approve the resignation, subject to any orders the court determines are necessary to protect the principal’s interests.
(2) If the attorney-in-fact is not subject to a duty to act under Section 4230, the court shall approve the resignation, subject to the court’s discretion to require the attorney-in-fact to give notice to other interested persons.
(f) Compelling a third person to honor the authority of an attorney-in-fact.
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.
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Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.
I am also the Chair of the Business Law Section of the Bar Association of San Francisco.
Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com; Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance, responsibilities and rights, compliance, investigations, and risk management http://auditcommitteeupdate.com
My law practice primarily involves the following areas and issues:
Probate Court Disputes and Litigation
- Trust and estate disputes and litigation, and contentious administrations representing fiduciaries and beneficiaries; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.
Business and Business-Related Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; and Nonprofit Entities
- Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; breach of the covenant of good faith and fair dealing; etc.
- Misappropriation of trade secrets
- M&A disputes
- Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, voting, etc., disputes
- Buy-sell disputes
- Funding and share dilution disputes
- Accounting, lost profits, and royalty disputes
- Access to corporate and business records disputes
- Employee, employer and workplace disputes, discrimination, whistleblower and retaliation, harassment, defamation, etc.
Investigations and Governance
- Corporate and business internal investigations
- Board, audit committee and special committee governance and processes, disputes, conflicts of interest, independence, etc.
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