Authorities as the decision cited them, with how this panel applied each one.
California Civil Code Section 2356(a)(2)
Power of Attorney terminates upon death of principal unless coupled with an interest.
The Power of Attorney was not coupled with an interest and terminated upon death of the principal.
California Civil Code Section 2356(b)
Exception to termination if power is coupled with an interest requires three conditions to be met.
No evidence that the Power of Attorney was coupled with an interest in the proceeds; thus, it terminated upon death.
From the decision · page 6Here there is no evidence that when the Power of Attorney was created, the proceeds of this case
were given to the Petitioner. There are no words in the document to evidence this, and no testimony
to support it. Further, any interest was entirely speculative and unproved at that time. There is also
no evidence that there was any title created for Jorge the applicant, or any specific duty required.
Because the Power of Attorney does not grant a right to keep the proceeds, there is no benefit to
the agent. This Power of Attorney is not coupled with an interest. The Power of Attorney is not
durable and terminates with the death of the applicant.
Probate Code Section 4128
Durable power of attorney requires specific warnings and provisions to remain effective after death or incapacity.
The Power of Attorney did not include required warnings or provisions to be durable.
From the decision · page 8The Power of Attorney does not qualify as a durable power of attorney which would allow it to be
effective after the death of the applicant. The document does not include the warnings required by
Probate Code Section 4128 to create a valid durable type power of attorney. The document also
does not identify itself as a durable power of attorney. Finally, the document does not include a
provision expressly stating that it is intended to grant powers to continue in effect after the death
or incapacity of the principal. A power of attorney that is not specifically a durable power of
attorney is terminated by incapacity of the principal, Probate Code Section 4155. Thus the power
of attorney was not valid at the time the Compromise and Release was signed, which occurred
after the death of the principal. This renders the Compromise and Release invalid.
Probate Code Section 4155
Non-durable power of attorney terminates upon incapacity of principal.
The Power of Attorney was not durable and terminated upon death of the principal.
From the decision · page 8The Power of Attorney does not qualify as a durable power of attorney which would allow it to be
effective after the death of the applicant. The document does not include the warnings required by
Probate Code Section 4128 to create a valid durable type power of attorney. The document also
does not identify itself as a durable power of attorney. Finally, the document does not include a
provision expressly stating that it is intended to grant powers to continue in effect after the death
or incapacity of the principal. A power of attorney that is not specifically a durable power of
attorney is terminated by incapacity of the principal, Probate Code Section 4155. Thus the power
of attorney was not valid at the time the Compromise and Release was signed, which occurred
after the death of the principal. This renders the Compromise and Release invalid.
Labor Code Sections 5900(a), 5902, 5903
A petition for reconsideration may only be taken from a final order, decision or award.
The petition for reconsideration was properly filed from a final order.
From the decision · page 4A Petition for reconsideration may only be taken from a final order, decision or award, Labor Code
Sections 5900(a), 5902 and 5903. A final order is one that "determines any substantive right or
liability of those involved in the case", Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 45
Cal.Comp.Cases 410; Hansen v. Workers' Comp. Appeals Bd. (1988) 53 Cal.Comp.Cases 193
(Writ Den.): Jablonski v. Workers' Comp. Appeals Bd. (1987) 52 Cal.Comp.Cases 399 (Writ Den.)
Merrill v. Department of Motor Vehicles, 71 Cal. 2d 907 (1968)
Definition of 'bona fide' as honesty, fair dealing, and freedom from deceit.
The transaction was not bona fide as the death was not disclosed, affecting validity of the Power of Attorney.
From the decision · page 12Viewing the term "bona fide" within the entire statutory scheme in which it appears, we conclude
that it is there used in the first lexical sense adverted to above to wit, that of honesty, fair dealing,
and freedom from deceit." Merrill v. Department of Motor Vehicles, 71 Cal. 2d 907(1968).