Who is legally allowed to override a power of attorney (POA) depends on the type of POA in question and the reason why a cancellation is being sought.
A power of attorney allows a person (the Principal) to designate a trusted individual (the Agent) to take actions on their behalf if they are unable to do so themselves — typically because of old age or declining health. A durable power of attorney doesn’t expire if the principal becomes incapacitated.
Related Resource: What is Power of Attorney?
There are two main types of power of attorney:
- Financial POA — A financial power of attorney is the standard POA form. It gives your Agent the authority to make financial decisions on your behalf.
- Medical POA — A healthcare or medical power of attorney grants the Agent you appoint the authority to make decisions about your care if you are unable to do so.
The Principal can override either type of POA whenever they want.
However, other relatives may be concerned that the Agent (in most cases a close family member like a parent, child, sibling, or spouse) is abusing their rights and responsibilities by neglecting or exploiting their loved one.
In such a case, legal action can be taken by someone other than the Principal.
An Agent with power of attorney is legally required to act in the best interest of the Principal. If you believe an Agent is taking advantage of their Principal and wish to override power of attorney, you may need to challenge it in court and provide evidence that the Agent is being grossly negligent or abusive.
How to Override a Power of Attorney
Overriding a power of attorney is not a decision to be taken lightly. It will require a close reading of the power of attorney document to determine whether or not all responsibilities were followed to the letter. Hiring an attorney with experience in elder and/or disability law is advised.
If you wish to take power of attorney away from someone due to abuse or negligence, review the document with your lawyer and follow these steps:
- Consult the Principal — If they’re of sound mind, explain your concerns about the Agent to the Principal. They can remove or change their Agent verbally, but it’s preferable if they fill out a formal revocation of power of attorney form.
- Approach the Agent — Through your attorney, request that the Agent step down if the Principal will not revoke the POA. In the event that the Agent refuses, the role falls to the Alternate Agent named on the document. If no Alternate Agent is named, you will need to make a court application for a guardian and/or conservator to take care of the Principal’s interests.
- Prepare for Court — If the Agent refuses to stand down, and a competent Principal refuses to revoke the power of attorney, you will need to go to court. Your lawyer can petition the court to set aside the power of attorney and transfer guardianship or conservatorship to someone else while the case is ongoing.
If the case reaches court, keep in mind that you will likely be asked to:
- convince a judge that the Agent needs to be removed
- prove that the Principal’s wishes need to be rejected due to mental incapacity
If an Agent won’t stand down or a competent Principal refuses to revoke their authority, an experienced lawyer is your best hope of convincing a judge to override a power of attorney.
An attorney can also work with experts to determine the Principal’s mental competence, and serve as a reliable support in what can be a difficult experience for families.
Power of Attorney Rights and Limitations
With power of attorney, your Agent can legally sign documents, make healthcare decisions, and perform financial transactions on your behalf.
Your Agent is legally obligated to act in your best interest. This is why it is so important to appoint an appropriately trustworthy Agent when setting up a power of attorney.
Even if your power of attorney form grants broad powers, your Agent cannot:
- Change or alter your will
- Act in a manner that is not in your best interest
- Use power of attorney after your death to make decisions (unless they’re executor of your will)
- Transfer power of attorney to another person
