SENIOR ASSEMBLY PROPOSAL NO. 29

INTRODUCED BY SENIOR ASSEMBLY MEMBER RICHARDS

LEGISLATIVE COUNSEL'S DIGEST

AP 29: POWERS OF ATTORNEY.

UNDER EXISTING LAW, A DURABLE POWER OF ATTORNEY IS A POWER OF ATTORNEY BY WHICH A PRINCIPAL DESIGNATES ANOTHER PERSON AS ATTORNEY-IN-FACT IN A WRITING THAT SHOWS THE INTENT OF THE PRINCIPAL THAT THE AUTHORITY CONFERRED IS EXERCISABLE NOTWITHSTANDING THE PRINCIPAL’S SUBSEQUENT INCAPACITY. EXISTING LAW PROVIDES THAT IN A POWER OF ATTORNEY, A PRINCIPAL MAY GRANT AUTHORITY TO AN ATTORNEY-IN-FACT TO ACT ON THE PRINCIPAL’S BEHALF WITH RESPECT TO ALL LAWFUL SUBJECTS AND PURPOSES, INCLUDING THE PRINCIPAL’S PROPERTY, PERSONAL CARE, HEALTH CARE, OR ANY OTHER MATTER.

THIS MEASURE WOULD MEMORIALIZE THE LEGISLATURE AND THE GOVERNOR TO ENACT LEGISLATION THAT WOULD REQUIRE THE CALIFORNIA LAW REVISION COMMISSION TO STUDY, HOLD PUBLIC HEARINGS THROUGHOUT THE STATE, AND REPORT TO THE LEGISLATURE WHETHER IT WOULD BE ADVISABLE TO REPEAL THE PROVISIONS GOVERNING THE DURABLE POWER OF ATTORNEY AND REPLACE THEM WITH THE UNIFORM POWER OF ATTORNEY ACT, AND, IF THE CALIFORNIA LAW REVISION COMMISSION FINDS THAT IT IS ADVISABLE, THE LEGISLATURE REPEAL THE DURABLE POWER OF ATTORNEY AND ENACT THE UNIFORM POWER OF ATTORNEY ACT.

VOTE: MAJORITY.

AP 29: RELATING TO POWERS OF ATTORNEY

WHEREAS, WHILE THE DURABLE POWER OF ATTORNEY PROVISIONS IN CALIFORNIA STATUTES OFFER BENEFITS SUCH AS AVOIDING GUARDIANSHIP OR CONSERVATORSHIP, CUTTING COSTS, AND ALLOWING OTHERS TO MAKE DECISIONS FOR THE PRINCIPAL, IT CAN ALSO BE A “LICENSE TO STEAL”; AND

WHEREAS, THE DURABLE POWER OF ATTORNEY MAKES IT EASY FOR THE ATTORNEY-IN-FACT TO FINANCIALLY EXPLOIT AN INCAPACITATED PRINCIPAL, SINCE IT CONFERS BROAD DECISIONMAKING AUTHORITY, PROVIDES NO MONITORING OF THE ATTORNEY-IN-FACT, LACKS CLEAR STANDARDS OF CONDUCT FOR THE ATTORNEY-IN-FACT, AND HAS NO CLARITY ABOUT THE DUTY THE ATTORNEY-IN-FACT OWES TO THE PRINCIPAL; AND

WHEREAS, IN MANY INSTANCES PEOPLE SEEKING LEGAL ADVICE ABOUT DURABLE POWERS OF ATTORNEY MAY NOT RECEIVE ADEQUATE COUNSELING ABOUT THE RISKS INVOLVED BECAUSE PRACTICING ATTORNEYS ARE OFTEN NOT KNOWLEDGEABLE ABOUT ELDER ABUSE; NOW, THEREFORE, BE IT

RESOLVED, BY THE SENIOR ASSEMBLY AND THE SENIOR SENATE, JOINTLY, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA AT ITS 2012 REGULAR SESSION, A MAJORITY OF THE MEMBERS VOTING THEREFOR, HEREBY PROPOSES THAT THE LEGISLATURE DIRECT THE CALIFORNIA LAW REVISION COMMISSION TO STUDY, HOLD PUBLIC HEARINGS THROUGHOUT THE STATE, AND REPORT TO THE LEGISLATURE WHETHER IT WOULD BE ADVISABLE TO REPEAL THE PROVISIONS GOVERNING THE DURABLE POWER OF ATTORNEY AND REPLACE THEM WITH THE UNIFORM POWER OF ATTORNEY ACT, AND, IF THE CALIFORNIA LAW REVISIONS COMMISSION FINDS THAT IT IS ADVISABLE, THE LEGISLATURE REPEAL THE DURABLE POWER OF ATTORNEY AND ENACT THE UNIFORM POWER OF ATTORNEY ACT; AND BE IT FURTHER

RESOLVED, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA RESPECTFULLY MEMORIALIZES THE LEGISLATURE AND THE GOVERNOR OF THE STATE OF CALIFORNIA TO ENACT APPROPRIATE LEGISLATION THAT WOULD ADDRESS THE CONCERNS SET FORTH IN THIS MEASURE; AND BE IT FURTHER

RESOLVED, THAT A COPY OF THIS MEASURE BE TRANSMITTED TO THE SPEAKER OF THE ASSEMBLY, THE PRESIDENT PRO TEMPORE OF THE SENATE, AND THE GOVERNOR OF THE STATE OF CALIFORNIA.

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RN 12 16481