Family, wills and estates
How to Select a Power of Attorney Lawyer: A Step-by-Step Guide
A financial power of attorney lets someone you choose manage your money and property for you. The lawyer you hire drafts the document, but the more consequential choice is the person you name as your agent, and a good lawyer helps you make that choice carefully. The agent decision, the form decision, and the signing all depend on what the document must do, so that question comes first. California’s Probate Code serves as the worked example; if you live elsewhere, ask each lawyer for your state’s equivalent of each rule.
Step 1: Decide What the Document Must Do
Before your first consultation, write down what you want the agent to be able to do and when.
- Which matters: bank accounts, investments, real estate, taxes, business interests, government benefits, or all of these.
- When it starts: immediately, or only if you become unable to manage your affairs.
- What is excluded: for example, gifts, changes to beneficiary designations, or transactions that benefit the agent.
Health care decisions can be addressed in a separate document. In California, the statutory advance health care directive explains that “Part 1 of this form is a power of attorney for health care” (Cal. Prob. Code § 4701). Ask each lawyer whether your financial and health care documents should name the same person, and how they will work together.
Ask: “Based on what I have told you, which powers would you include, which would you leave out, and why?” Reasons tied to what you said are the sign of a tailored document; the same list for every client is not.
Step 2: Choose Your Agent, Using the Warnings the Law Requires
California requires certain printed forms to warn the people who sign them. Under Probate Code § 4128(a), “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” must contain warning statements, including that:
- “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 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 have the right to revoke or terminate this durable power of attorney at any time, so long as you are competent” (Cal. Prob. Code § 4128).
These warnings are written for people signing without a lawyer, but they also describe what to weigh when choosing an agent:
| Warning | The agent question it raises |
|---|---|
| no duty to act unless agreed in writing | Is the person willing to serve, and should there be a written acceptance? |
| power to "sell, and convey" your property | Do you trust this person's judgment and honesty with that authority? |
| no gifts unless "specifically" authorized | Do you need gift authority, for family support or planning, and with what limits? |
| "the right to receive reasonable payment" | Do you want the agent paid, and does the document say so either way? |
| powers continue if you can no longer decide | Who is the backup if your first choice cannot serve, and in what order? |
What the agent is told
The same section requires a second notice, addressed to the person who accepts the appointment. It tells the agent that by acting or agreeing to act, “you assume the fiduciary and other legal responsibilities of an agent,” including “the legal duty to act solely in the interest of the principal and to avoid conflicts of interest” and “the legal duty to keep the principal’s property separate and distinct from any other property owned or controlled by you.” It warns that the agent may not transfer the principal’s property to himself or herself “without full and adequate consideration,” or accept a gift, unless the document specifically authorizes it, and that an agent who does so without authorization “may be prosecuted for fraud and/or embezzlement” (Cal. Prob. Code § 4128).
Read that notice with the person you have in mind. An agent who would struggle to keep your money separate from his or her own, or who expects to be repaid informally from your accounts, is the wrong choice regardless of how well the document is drafted. Ask the lawyer whether he or she will explain these duties to your agent directly.
For selection, ask how the lawyer helps clients choose an agent and what he or she would want to know about the person you are considering. Questions about your agent’s reliability, location, and relationship with your family are the ones that shape how the document will work, so expect them.
Step 3: Decide Whether You Need a Lawyer or a Statutory Form
California provides a statutory form. Under Probate Code § 4401, “the following statutory form power of attorney is legally sufficient when the requirements of Section 4402 are satisfied.” The official online text notes that the form itself “appears in the hard-copy publication of the chaptered bill,” Chapter 113 of the Statutes of 2011 (Cal. Prob. Code § 4401).
A statutory form may be enough when your needs are simple and your agent is someone you trust completely. A lawyer adds value when your situation calls for choices a form does not make for you: gifts, agent payment, successor agents, business interests, and the fit with your will, trust, and beneficiary designations. So ask each lawyer whether a statutory form would meet your needs and, if not, exactly what he or she would add. An explanation of when a form is enough gives you a fairer comparison than a custom document recommended in every case.
Step 4: Sign It Correctly
A power of attorney that is not signed properly may not work when it is needed. In California, under Probate Code § 4121, a power of attorney “is legally sufficient if all of the following requirements are satisfied”: it “contains the date of its execution”; it is signed “by the principal” or “in the principal’s name by another adult in the principal’s presence and at the principal’s direction”; and it is “either (1) acknowledged before a notary public or (2) signed by at least two witnesses who satisfy the requirements of Section 4122” (Cal. Prob. Code § 4121). The required warning statement adds that a power of attorney “that may affect real property should be acknowledged before a notary public so that it may easily be recorded.” If witnesses are used instead, § 4122 sets three conditions: the witnesses “shall be adults,” “the attorney-in-fact may not act as a witness,” and each witness must witness either the principal’s signing or the principal’s acknowledgment of the signature (Cal. Prob. Code § 4122). A signing at the kitchen table, witnessed by the person being named as agent, fails the second condition.
For selection, ask: “Will the signing take place in your office, will you use a notary, and if witnesses are used, how will you make sure they qualify?” Supervised execution and a document sent home for signing are different services, and the difference matters if witnesses are used.
Step 5: Prepare for Banks and Other Institutions
A valid document is only useful if institutions accept it. California provides a remedy when a third party refuses a statutory form power of attorney. Under Probate Code § 4406(a), if a third person “refuses to honor the agent’s authority under the power of attorney within a reasonable time, the third person may be compelled to honor the agent’s authority” in an action brought for that purpose, subject to a limit where the principal could not compel the third person. Under § 4406(b), “the court shall award attorney’s fees to the agent if the court finds that the third person acted unreasonably.” And under § 4406(d), a refusal “shall be deemed unreasonable if the only reason for the refusal is that the power of attorney is not on a form prescribed by the third person to whom the power of attorney is presented” (Cal. Prob. Code § 4406).
Note what the statute covers: it applies to a “statutory form power of attorney under this part,” and § 4406(c) states that a refusal is not unreasonable “if the refusal is authorized or required by state or federal statute or regulation.”
That limit links two decisions. If the lawyer drafts a custom document rather than the statutory form, ask whether the remedy in § 4406 would still be available, and what your agent would do if a bank insisted on its own form. Ask, too, whether you should give the document to your banks and brokers now, while you can still answer their questions. Acceptance is easier to arrange before the document is needed than on the day it is used.
Step 6: Plan for Health Information and the Start Date
If the power of attorney takes effect only when you become unable to manage your affairs, someone will have to show that it has taken effect. That may require medical information. Under the federal privacy rule, “if under applicable law a person has authority to act on behalf of an individual who is an adult or an emancipated minor in making decisions related to health care, a covered entity must treat such person as a personal representative,” with respect to protected health information relevant to that representation (45 CFR § 164.502). That rule turns on authority to make health care decisions, which a financial agent may not have.
For selection, ask: “If my power of attorney starts only on incapacity, how will incapacity be shown, and will my agent be able to obtain the information needed?” A specific answer covers how the document will actually take effect, and whether an immediately effective document or a coordinated health care directive would work better for you.
Step 7: Consider Special Situations
Military service
If you or the person signing is a service member, federal law gives special effect to a military power of attorney. Under 10 U.S.C. § 1044b(a), a military power of attorney “is exempt from any requirement of form, substance, formality, or recording that is provided for powers of attorney under the laws of a State,” and “shall be given the same legal effect as a power of attorney prepared and executed in accordance with the laws of the State concerned.” A military power of attorney is “any general or special power of attorney that is notarized in accordance with section 1044a of this title or other applicable State or Federal law” (10 U.S.C. § 1044b). The statute also provides that “each military power of attorney shall contain a statement that sets forth the provisions of subsection (a),” while making clear that the exemption still applies “to a military power of attorney that does not include a statement described in that paragraph.” Ask whether the lawyer, or a military legal assistance office, should prepare the document, whether it will include that statement, and how it would be presented to institutions that may be unfamiliar with federal law.
Capacity concerns
A power of attorney must be signed while the person can make the decision. Under the California warning statement, the right to revoke lasts “so long as you are competent.” If there is any question about capacity, ask the lawyer how he or she assesses it and documents it at signing. If the person can no longer sign, ask what court process would apply instead.
Changing or revoking the document later
Circumstances change, and the document should be able to change with them. The California warning statement explains that “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,” and that, “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.” Both points matter when you choose an agent: the authority reaches property you acquire later, and changing it requires a new signing with the same formalities.
Ask: “If I want to change my agent or revoke this document, what exactly would I need to do, and whom should I notify?” The answer should cover the document’s whole life, including telling institutions that already hold a copy.
Step 8: Settle Who the Lawyer Represents
A family member may arrange the appointment, but the client is the person signing. If an adult child made the first call, confirm that the lawyer represents you, that he or she will meet with you alone to confirm your wishes, and what will be shared with your agent or family. Those three answers settle who the lawyer works for before any document is drafted.
Step 9: Verify the Lawyer and Read the Fee
Verification
Look up the lawyer in the bar directory of your state. The listing confirms a license and its status, not estate planning experience. A firm’s website can show whether it prepares statutory-form or custom powers of attorney; who would draft yours is a question for the meeting.
Fees
Ask whether the lawyer charges a fixed fee for the power of attorney alone or as part of a package, and what it covers:
- Documents. The financial power of attorney only, or also a health care directive and other planning documents?
- Signing. Is the notary or the signing meeting included?
- Later help. If an institution refuses the document, is help included?
Ask for the fee terms in writing before work begins.
Step 10: Compare and Decide
Bring a list of your accounts, property, and business interests; the names of the people you are considering as agent and successor; any existing power of attorney, will, trust, or health care directive; and any forms your banks or brokers have asked you to use. Then compare each lawyer on the same points: how he or she would help you choose an agent; whether a statutory form would meet your needs; how signing would be handled; how he or she would prepare for institutional acceptance; how the start date would work; and what the fee covers.
Before you sign, check that three things were discussed, not only drafted. Drafting without questions about your agent, gifts, and agent payment leaves the most consequential choices to the form. A document sent for you to sign without instructions on notarization or witnesses may fail when it is needed. No plan for institutions that may refuse the document leaves your agent to discover the problem at the bank. And a meeting dominated by a family member, without any time with you alone, leaves the lawyer unsure whose wishes the document carries. If you may need the document soon, a lawyer near you has one practical advantage: the signing, with a notary or qualified witnesses, can happen quickly and in person.
When you have chosen, you should be able to say whom you will name and why, what the document will allow, how it will be signed, and how it will be accepted when it is needed. Before the signing, run a readiness check: the agent and successor have agreed to serve, the gift and payment choices are in the document, the signing method meets the statute, your banks have seen a copy, and you know how the document would be revoked. Any unchecked item is the question to take back to the lawyer.
Legal disclaimer: This guide provides general information about powers of attorney and selecting a lawyer, using California statutes as an example. It is not legal advice. Requirements differ by state; speak with a lawyer licensed where you live.