Special powers of attorney for financial management carry the same caveat as general powers of attorney: placed into the wrong hands, they can become a license to steal. Like all financial powers of attorney, you must be certain that the person you appoint to act as your agent is absolutely trustworthy. Here are some examples of special powers of attorney and how they work.

A special power limits your agent's authority and is generally used only in specific circumstances. For example, you may be in the process of purchasing a home but, nearly a year ago, you purchased a non-refundable European vacation and you won't be available to sign all of the real estate documents. A special power of attorney can authorize your agent to act on your behalf and sign all necessary papers to complete the purchase.

Under this scenario, your agent's authority is very limited.

Contrast this to a general power of attorney for financial matters. With this document, you are granting authority for someone else to handle all of your financial matters - opening and closing bank accounts, withdrawing money, purchasing or selling real property - essentially, your agent would have the ability to transact every type of financial business that you would. A very dangerous document if placed into the wrong hands.

Usually, a general power over finances should only be granted if it utilizes a "springing power". This means that your agent has no authority to act unless two qualified medical doctors provide written declarations, under penalty of perjury, that you are incapacitated and unable to make sound financial decisions. Then, and only then, does the power "spring into being", as it were, and allow your agent to act on your behalf.

A special power of attorney generally becomes effective immediately. It is granted to allow your agent the authority to handle one or more specific transactions and, again, is usually done out of convenience because you are unavailable to timely act.

Using a boilerplate form where you just fill-in the blanks to specify the exact authority you wish to grant can be a mistake. Sometimes the authority is too limited and could prevent your agent from being able to complete the particular financial transaction. For example, granting authority to "sign all documents required by my real estate broker" may not be acceptable to the lender or the escrow company. They may have different requirements and do not feel comfortable in recognizing your agent's authority under the special powers you have stated.

An attorney can assist with the creation of a special power of attorney for financial matters and, in doing so, should contact all of the companies and agencies involved to ensure that their requirements are met. The exact language used in the document can then be tailored to meet all of these needs.

Special powers of attorney can be very useful in completing certain transactions but should be tailored to meet very narrow and specific situations. If properly drafted, they are a valuable financial tool.

By: George Dickerman
George F. Dickerman is an elder law attorney in Riverside County, California, practising law for 23 years. To learn more about elder law issues, including the topic of conservatorship, and to subscribe to a free newsletter that provides valuable information on how to assist your family members and loved ones, please visit http://Elder-Law-Advocate.com

Sometimes, one of the key pieces of evidence in your case is a hearsay statement. Maybe it's an admission from the defendant or from the defendant's agent. It might be testimony from another trial or hearing that squarely addresses an issue in your case. Whatever the situation, if you need to offer an out-of-court statement into evidence for the truth of the matter asserted in the statement itself, you have a problem on your hands.

But like getting a flat tire in the rain, it might not be in insurmountable problem. It is, however, a problem nonetheless, which means you need to plan your solution early enough to implement it. So when planning your case in chief, consider whether you might benefit from the spontaneous-statements hearsay exception. Let me give you an example.

The first case I ever tried to a jury was actually decided on a spontaneous statement of an unavailable hearsay declarant. I won that trial because I recognized my hearsay problem early enough to successfully implement my solution.

I was prosecuting a misdemeanor domestic-violence case. The defendant was a six foot five inch tall, 275 pound bruiser. The victim was his five foot tall, 90 pound wife. They were camping at the San Elijo Beach campground, and he cold-cocked her with a closed fist right cross straight to her eye socket, producing a conspicuous shiner.

The next morning, a park ranger came up to the couple. When he noticed the wife's shiner, he asked her: "What happened?" Suddenly, she became visibly upset as though she were re-living the prior night's events. Tears welled up in her eyes. Then, she pointed to her husband and dramatically blurted out: "He hit me!"

One of the social realities of trying domestic-violence cases is that the victims find themselves in a vicious conflict of interests. On the one hand, they want their abusers to be incarcerated so that they are free from the physical abuse. But on the other hand, they may be financially dependent on their abusers, and incarceration would therefore be extremely inconvenient for the household. They also fear retaliation. This leads to a phenomenon commonly known as "the recanting witness" or "the recalcitrant" or "absentee victim."

Naturally, by the time the trial came around, the wife was "unavailable." She ducked my subpoenas, slipped into the network of battered women and homeless shelters, and was gone. That meant that my star witness would be the park ranger who had to testify about what she said, which was plainly hearsay.

Enter the spontaneous statement - also known as the exited utterance.

Evidence Code §1240 states that a statement is not inadmissible hearsay if it "purports to narrate, describe, or explain an act, condition, or event perceived" and was made "spontaneously while the declarant was under the stress of excitement caused by such perception."

Case law states that for the exception to apply, there must be (1) an occurrence sufficiently startling to produce "nervous excitement and render the utterance spontaneous and unreflecting;" (2) the utterance must have been made before there was time to "contrive and misrepresent," i.e., while the nervous excitement still dominated the reflective powers; and (3) "the utterance must relate to the circumstances of the occurrence causing it." People v. Poggi (1988) 45 Cal.3d 306, 318. The idea is that statements made in the heat of the moment are less likely to be false.

The admissibility of spontaneous statements is a matter within the discretion of the trial court. People v. Pearch (1991) 229 Cal.App. 3d 1282, 1290. Often, the main issue - as it was in my domestic-violence case - is a lapse in time between the event and the statement. But the key is that the statement must be made under the stress and excitement of the event "while the reflective powers were still in abeyance." People v. Washington (1969) 71 Cal.2d 1170, 1176.

For example, the statements in Washington were made an hour after the event, but were nevertheless admissible. See also, People v. Raley (1992) 2 Cal.4th 870, 893 (18-hour gap in time); and In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 (2-day gap in time). However in one case, the court found that 13 hours between the startling event and the statement was too long for the exception to apply. Pearch, supra, 229 Cal.App.3d at 1290.

There is no bright-line rule about the timing of the event and the utterance. The distinction seems to be whether the declarant was still under the stress of the event. In my domestic-violence case, for example, the court was persuaded that the victim was under the stress of the battery because she welled up and seemed to be re-living the attack when she identified her husband as the attacker. He was also standing right behind her when the park ranger asked her "what happened?"

The spontaneous-utterance exception is not limited to verbal testimony. Affidavits or declarations can also contain hearsay made admissible by the exception. Mecchi v. Picchi (1966) 245 Cal.Ap.2d 470.

If you plan to introduce a spontaneous utterance at trial, be sure to have all necessary witnesses to lay your foundation. For example, be sure to call the person who heard the statement. Also, be sure to call the person who can testify as to the declarant's state of mind, i.e., that the declarant was excited and under the stress of the event.

Finally, be sure to consider all other possible exceptions such as contemporaneous statements (Evid. Code §1241); statements relating to the infliction or threat of physical injury (Evid. Code §1370); statements by an elder or dependent-adult victim of abuse (Evid. Code §1380); admissions (Evid. Code §1220); dying declarations (Evid. Code §1242); statements of state of mind, emotion or physical sensation (Evid. Code §1250); declaration against interest (Evid. Code §1230); or prior inconsistent statements (Evid. Code §1235).

If you know that your case depends on a spontaneous statement - or any hearsay exception for that matter - plan early. Try to obtain your opponent's stipulation as to admissibility, or else subpoena all foundational witnesses, request an Evidence Code §402 hearing and/or file motions in limine as necessary. Whatever the case, be proactive in getting your evidence admitted, especially if you can foresee an objection.

By: Gordon L Levinson
Gordon Levinson has successfully represented hundreds of cases in California. A graduate of University of San Francisco School of Law, Gordon now uses his insurance-defense experience representing injured plaintiffs.

For more information, contact the Levinson Law Group at 1-866-643-HURT (4878), or at http://www.LevinsonLawGroup.com

Birth certificates are very important for identification purposes. Anyone born in the US is issued one at birth. They are useful for getting a job, getting a driver's license and several other things requiring identification. However, they can sometimes become lost or damaged. If you need to obtain a copy of a California birth certificate, there are a few things you should know first.

All states, including California allow access to birth certificates, as well as other vital records, including, marriage, divorce and death records. However, the exact process for obtaining a certified copy of a birth certificate varies from state to state.

If you are trying to obtain a copy of a birth certificate in the state of California, you should keep in mind that birth certificate and other similar records, prior to July of 1905, are kept in the county where that event took place. All records since that time are kept in the office of the State Registrar, instead. So, it is important to know what year and what county you are looking for. That way, you will know whether you need to contact the county clerk to obtain the copy, or the State Registrar's office.

If you are looking for a certified copy of your own birth certificate or that of an immediate family member, chances are that you will want records from after 1905. If that's the case, you should contact the Vital Records Office in Sacramento, California. You can do so in writing, but, before you do, you may want to call them to check on things, such as fees involved and time it will take to obtain your copy. They can be reached at (916) 445-2684. You will want to have a notebook and pen handy, because you are likely to get a recorded message with such information. Once you are aware of the fees required to obtain a certified copy, you can make a check payable to the Vital Records Office.

Although that method is cheapest, it does take quite a while. It can take several weeks to obtain your certified birth certificate that way. Also, keep in mind that, as of 2003, you are required to sign a sworn statement, in order to obtain a copy. You must have the statement notarized and then mail it in, or it will be returned to you and you will not receive your copy.

If you are more interested in convenience or speed, you may prefer to order your certified birth certificate copy online instead. It is quick and easy. Simply log on to dhs.ca.gov/hisp/chs/ovr/ordercert.htm and follow the simple instructions there. By that method, you can have your certified copy in as little as a few days, depending on where you live.

If you follow all of the regulations that the State of California requires, obtaining a copy of your California birth record should be fairly simple. Once you have it, store it in a safe place, so have to worry about ordering one again.

By: Kalvin Hobbs
To Learn More About California Birth Records and to Search Birth Records Online, visit the Birth Records Directory Today at http://www.birthrecordsonline.org.

Being sued can be an unsettling and frightening experience. However, it you are not careful, it can be a haunting one, even when you win. That is because court records about the lawsuit are available to the public - and in many cases over the internet.

A search of court records, which is an increasingly common part of background checks for jobs or housing, can reveal details of a lawsuit that are embarrassing or unfairly prejudicial. California law provides some protections from being unfairly prejudiced by a civil suit that was dismissed or without merit, but you often need to be proactive in protecting your good name.

There are different rules for different types of cases and different rules for who is providing the information about you. This three part series will examine :
(1) how to seal information from a typical law suit,
(2) the special rules that apply to unlawful detainer actions (evictions), and
(3) what can and cannot be reported and by whom.


To understand how the records of a dismissed court case can cause haunt you consider the following scenario:

Jane, a software engineer, quit her job when she became uncomfortable with her employer over-billing clients. After she quit, Jane told the client about the over billing. Her former employer was infuriated and filed a lawsuit against Jane that claimed Jane defamed the company, stole company secrets and violated an agreement not to quit and compete against the employer. The court case was dismissed when the judge found the lawsuit was without merit.

Jane, who is now looking for a new job and is one of two finalists for a position with a local high-tech company. The company, which is concerned about protecting its technology secrets, performs a background check that searches surrounding counties for civil and criminal court cases. The company sees that Jane was recently sued by her former employer for stealing trade secrets. The company decides that Jane is not the best fit for the job. While Jane cannot prove it, she suspects that the record of the lawsuit cost her the job.

Jane could have eliminated the risk of being unfairly prejudiced if she was proactive and asked the court to seal the record of the dismissed lawsuit. California Court Rule 2.550 provides the constitutional standard and procedure a court will use when someone requests to seal a court record that would otherwise be public. Because of strong First Amendment support promoting public access to court records, sealing a record is an uphill battle.

California courts will use a balancing test in deciding whether or not to grant a request to seal a record. The court weighs the First Amendment right of public access to court records against any “overriding interests” that support sealing the record to determine if the request should be granted. While the Rules do not define what may qualify as an “overriding interest,” a person’s interest in housing or earning income definitely qualifies.

In the scenario above, Jane could have argued to the court that her “overriding interests” included protecting her ability to obtain a job and earn a living. Her argument would be strengthened because the claims in the dismissed lawsuit are taken very seriously by her prospective employers. The court would seal the record and prevent it from ever being disclosed if it found that the threat of potential harm to Jane’s career prospects outweighed the public’s interest in knowing about the dismissed lawsuit.

If you do not have the time or resources to petition a court to seal the record, you might be able to take advantage of special rules based on the nature of the case, or you may even be able to prevent a credit agency from reporting it. These options are discussed in part 2 and part 3 of this series on Keeping Old Law Suits From Haunting Your Future.

By: Mathew Higbee
By Mathew Higbee, the founder of RecordGone.com, a law firm that specializes in record clearing. Law clerk Melanie Bronny contributed to this article. court to seal the record.