Do you need a Power of Attorney?
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Protecting Californians.
This page explains
In Florida and Pennsylvania, there is no government form.
In Texas:-
In California there is a third party enforcement regime available where a Power of Attorney is created by a person.[2]
In Illinois:-
In New York:-
¶ Legislative Links
California §4401 | Statutory Form Power of Attorney
Texas §752.051 | Statutory Durable Power of Attorney
New York §5-1513 | Statutory Short Form Power of Attorney
Illinois §3-3 | Statutory Short Form Power of Attorney
The right of a person[4] to use other designs of Powers of Attorney is expressly preserved in California, Texas and Illinois (see CA, §4408 TX §752.003 & IL §3-1).
In New York, §5-1503 recognizes the right of a person[5] to include in a Power of Attorney "additional language" that "makes some additional provision" which is "not inconsistent with the.. government form."
§5-1503 provides:
"A Power of Attorney .. is not prevented from being a "Statutory Short Form Power of Attorney", by the fact that it also contains additional language at the section labeled "modifications" which:
eliminates from the Statutory Short Form Power of Attorney one or more of the powers enumerated in one or more of the constructional sections of this title with respect to a subdivision of the Statutory Short Form Power of Attorney, affirmatively chosen by the principal; or
supplements one or more of the powers enumerated in one or more of the constructional sections in this title with respect to a subdivision of the Statutory Short Form Power of Attorney, affirmatively chosen by the principal, by specifically listing additional powers of the agent; or
makes some additional provision which is not inconsistent with the other provisions of the Statutory Short Form Power of Attorney, including a provision revoking one or more powers of attorney previously executed by the principal." (§5-1503)
Design, content and style of the government forms for a person[6] in California, New York, Illinois and Texas are relatively similar.
Government forms for persons[7] are:-
In Texas the government form does not include space titled “Special Instructions” as seen in California or “Modifications” as seen in New York.
Similarly, in Illinois, the government form does not include space titled “Special Instructions” as seen in California or “Modifications” as seen in New York, although in Illinois there is space to record “Specific Limitations” and “Additional Powers”.
Without access to options such as imposing conditions or assigning different tasks to different agents authorizing the appointment of sub-agents and similar, it is not possible to create a better Power of Attorney.
Options for which there is no direct provision in a government form include:-
The term 'shortform' is part of the titles of the government form in New York and Illinois (see NY §5-1513; IL §3-3).
It is a description that fairly might also attach to the government forms in California and Texas given they are essentially of the same design.
They are called 'shortform' because they lack all of the substance of a fully worded Power of Attorney, that presumably might deal with the minutiae of many different issues, such as:-
A government form arguably represent the poorest grade of quality for a Power of Attorney, being nothing more than a 'shortform' design, i.e. 'short on detail', or 'short on options'.
The table below shows the 'variable fields' in each of the government forms for each of the Six (6) Greater States, illustrating the point that there could be no experience less personal.
| California | Principal's name & address - name(s) of agent(s) & addresses - task selection - special instructions - how multiple agents act (by agreement, independently) - option to choose if durable. |
| Texas | Same as California, also with: provision to name successor agent(s) - boxes to tick for authority for agent to receive remuneration or expenses - box to tick to include gifting powers - two options as to durability. |
| New York | Same as California, also with: optional successor agent(s) default decision making regime (i.e to act by agreement) - tick a box to authorize appointment of sub-agents (tick a box and name), gifting powers - provision to name monitors. |
| Illinois | Same as California (without option to designate as non-durable) also with: provision to name successor agent(s) - designated space to record limitations and additional powers - options to prevent agents being authorized from appointing sub-agents & receiving compensation - space to identify a future effective commencement time or termination time - default option to deny agent right to be a guardian. |
| Florida & Pennsylvania | No government form. |
The table above shows is that in all of the Six (6) Greater States, there are at best, a handful of very basic options, after which literally every person who uses a government form has precisely the same set of terms.
Often when Courts are approached, avoidance of the use of a 'shortform' government form or similarly bereft of detail Power of Attorney in favour of a Power of Attorney that dealt with the circumstances besetting the principal, or perhaps an agent, in clear terms that no one could sensibly dispute, would have meant litigation was avoided.
We might all wonder about we all have such similar needs as to require effectively the same document and how many of us if we had the choice, would prefer to adopt a fuller set of terms, beyond the generic choices in pro forma government forms.
There is no 'general form' of any kind for use by a commercial entity to create a Power of Attorney.
Certain government forms may include a Power of Attorney, or constitute a Power of Attorney for a particular purpose, for example tax purposes.[8]
It would not be unreasonable to suggest that the dawning of durable Powers of Attorney came with the introduction of a document that in a real sense, amounted to:-
We should seriously question how we concluded that a document with such a simple purpose could be re-cast for considerably more challenging purposes by adding merely a handful of words.
How can a Power of Attorney which preceds upon the important assumptions that the principal has capacity and chooses not to supervise their agents at their own risk (i.e. a non-durable Power of Attorney) be literally, 'word for word' perfect for to face a far more diverse set of challenges?
The truth is, it would be better if considerably more work had gone into designing the government form, including whole sections devoted to topics like:-
Apparently the government form is available in recognition of the need for a person to be able to put in place adequate arrangements if they are one day, without any capacity to manage their affairs.
The government form in every state, virtually in every western country, is almost identical in terms of its overall design in 95% of western countries.
It is not merely the absence of optional audit and risk management process in a government form that is unsatisfactory.
A government form, commonly titled a 'shortform' Power of Attorney typically:-
The shortcomings associated with government form range across both a failure to meet the challenges and failure to enable a principal to design a unique, personal scheme that meet really their needs, as opposed to a generic, one-size fits all solution for arguably one of the most difficult problems in society, managing our needs if we lose capacity to manage their affairs.
It is hard to dispute that the discouraging effect, in terms of discouraging an agent from perhaps acting unscrupulously, of including provisions in a government form dealing with topics like the following, being provisions applicable if the principal lacks capacity:-
These are just a handful of examples.
More inspiration is found under the heading There Are Risk Management Practices Involving The Terms Of The Power Of Attorney.
We can ignore rhetoric about non-durable Powers of Attorney not needing to be complicated, it is totally beside the point.
What matters is why sophisticated planning options and clear terms protecting the principal if they lose capacity (i.e. record keeping, auditing, notice provisions etc) are not yet fundamentally part of the government form, conveniently able to be deleted where they are not needed.
They are a sad, obvious omission which may have saved many people from losing everything.
Government form - Statutory Shortform Power of Attorney (§4401) (able to be used for durable or non-durable purposes)
§4408 expressly preserves the right of a principal to use other designs of Powers of Attorney.
Including a government form is required for anyone wanting to create a Power of Attorney with access to the third party enforcement regime (§4406).
Government forms - Durable Power of Attorney (§752.051)
§752.003 expressly preserve the right of a principal to use other designs of Powers of Attorney.
Government form - Statutory Shortform Power of Attorney (§5-1513) (able to be used for durable or non-durable purposes)
Including a government form is required for anyone wanting to create a Power of Attorney with access to the third party enforcement regime (§5-1504).
§5-1503 speaks of additional powers and additional provisions that are not inconsistent with the government form being included as modifications.
Government form - Power of Attorney (§3-3)
§3-1 expressly preserves the right of a principal to use other designs of Powers of Attorney.
In Florida and Pennsylvania, access to the third party enforcement regime accrue without use of a government form.
Neither Florida or Pennsylvania offer a government form.
Being not a Power of Attorney excluded from the ambit of the legislation - click here to read more. ↩︎
Being a principal who seeks to create a Power of Attorney that is not excluded from the ambit of the legislation - click here to read more. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Ibid. ↩︎
See Title 26 §7521. ↩︎