State Codes and Statutes

State Codes and Statutes

Statutes > California > Prob > 4230-4238

SECTION 4230-4238

4230.  (a) Except as provided in subdivisions (b) and (c), a person
who is designated as an attorney-in-fact has no duty to exercise the
authority granted in the power of attorney and is not subject to the
other duties of an attorney-in-fact, regardless of whether the
principal has become incapacitated, is missing, or is otherwise
unable to act.
   (b) Acting for the principal in one or more transactions does not
obligate an attorney-in-fact to act for the principal in a subsequent
transaction, but the attorney-in-fact has a duty to complete a
transaction that the attorney-in-fact has commenced.
   (c) If an attorney-in-fact has expressly agreed in writing to act
for the principal, the attorney-in-fact has a duty to act pursuant to
the terms of the agreement. The agreement to act on behalf of the
principal is enforceable against the attorney-in-fact as a fiduciary
regardless of whether there is any consideration to support a
contractual obligation.

4231.  (a) Except as provided in subdivision (b), in dealing with
property of the principal, an attorney-in-fact shall observe the
standard of care that would be observed by a prudent person dealing
with property of another and is not limited by any other statute
restricting investments by fiduciaries.
   (b) An attorney-in-fact who has special skills or expertise or was
designated as an attorney-in-fact on the basis of representations of
special skills or expertise shall observe the standard of care that
would be observed by others with similar skills or expertise.

4231.5.  (a) If the attorney-in-fact breaches a duty pursuant to
this division, the attorney-in-fact is chargeable with any of the
following, as appropriate under the circumstances:
   (1) Any loss or depreciation in value of the principal's property
resulting from the breach of duty, with interest.
   (2) Any profit made by the attorney-in-fact through the breach of
duty, with interest.
   (3) Any profit that would have accrued to the principal if the
loss of profit is the result of the breach of duty.
   (b) If the attorney-in-fact has acted reasonably and in good faith
under the circumstances as known to the attorney-in-fact, the court,
in its discretion, may excuse the attorney-in-fact in whole or in
part from liability under subdivision (a) if it would be equitable to
do so.
   (c) If a court finds that a person has in bad faith wrongfully
taken, concealed, or disposed of property belonging to a principal
under a power of attorney, the person shall be liable for twice the
value of the property recovered by an action to recover the property
or for surcharge. The remedy provided in this section shall be in
addition to any other remedies available in law to the principal or
any successor in interest of the principal.

4232.  (a) An attorney-in-fact has a duty to act solely in the
interest of the principal and to avoid conflicts of interest.
   (b) An attorney-in-fact is not in violation of the duty provided
in subdivision (a) solely because the attorney-in-fact also benefits
from acting for the principal, has conflicting interests in relation
to the property, care, or affairs of the principal, or acts in an
inconsistent manner regarding the respective interests of the
principal and the attorney-in-fact.

4233.  (a) The attorney-in-fact shall keep the principal's property
separate and distinct from other property in a manner adequate to
identify the property clearly as belonging to the principal.
   (b) An attorney-in-fact holding property for a principal complies
with subdivision (a) if the property is held in the name of the
principal or in the name of the attorney-in-fact as attorney-in-fact
for the principal.

4234.  (a) To the extent reasonably practicable under the
circumstances, an attorney-in-fact has a duty to keep in regular
contact with the principal, to communicate with the principal, and to
follow the instructions of the principal.
   (b) With court approval, the attorney-in-fact may disobey
instructions of the principal.

4235.  If the principal becomes wholly or partially incapacitated,
or if there is a question concerning the capacity of the principal to
give instructions to and supervise the attorney-in-fact, the
attorney-in-fact may consult with a person previously designated by
the principal for this purpose, and may also consult with and obtain
information needed to carry out the attorney-in-fact's duties from
the principal's spouse, physician, attorney, accountant, a member of
the principal's family, or other person, business entity, or
government agency with respect to matters to be undertaken on the
principal's behalf and affecting the principal's personal affairs,
welfare, family, property, and business interests. A person from whom
information is requested shall disclose relevant information to the
attorney-in-fact. Disclosure under this section is not a waiver of
any privilege that may apply to the information disclosed.

4236.  (a) The attorney-in-fact shall keep records of all
transactions entered into by the attorney-in-fact on behalf of the
   (b) The attorney-in-fact does not have a duty to make an account
of transactions entered into on behalf of the principal, except in
the following circumstances:
   (1) At any time requested by the principal.
   (2) Where the power of attorney requires the attorney-in-fact to
account and specifies to whom the account is to be made.
   (3) On request by the conservator of the estate of the principal
while the principal is living.
   (4) On request by the principal's personal representative or
successor in interest after the death of the principal.
   (5) Pursuant to court order.
   (c) The following persons are entitled to examine and copy the
records kept by the attorney-in-fact:
   (1) The principal.
   (2) The conservator of the estate of the principal while the
principal is living.
   (3) The principal's personal representative or successor in
interest after the death of the principal.
   (4) Any other person, pursuant to court order.
   (d) This section is not subject to limitation in the power of

4237.  An attorney-in-fact with special skills has a duty to apply
the full extent of those skills.

4238.  (a) On termination of an attorney-in-fact's authority, the
attorney-in-fact shall promptly deliver possession or control of the
principal's property as follows:
   (1) If the principal is not incapacitated, to the principal or as
directed by the principal.
   (2) If the principal is incapacitated, to the following persons
with the following priority:
   (A) To a qualified successor attorney-in-fact.
   (B) As to any community property, to the principal's spouse.
   (C) To the principal's conservator of the estate or guardian of
the estate.
   (3) In the case of the death of the principal, to the principal's
personal representative, if any, or the principal's successors.
   (b) On termination of an attorney-in-fact's authority, the
attorney-in-fact shall deliver copies of any records relating to
transactions undertaken on the principal's behalf that are requested
by the person to whom possession or control of the property is
   (c) Termination of an attorney-in-fact's authority does not
relieve the attorney-in-fact of any duty to render an account of
actions taken as attorney-in-fact.
   (d) The attorney-in-fact has the powers reasonably necessary under
the circumstances to perform the duties provided by this section.