A power of attorney (POA) allows a person (the Principal) to designate a trusted individual (the Agent or Attorney-in-Fact) to act on their behalf if they cannot do so themselves — typically because of old age or declining health.
Nevertheless, situations may arise where overriding — or, in legal terms, “revoking” — this authority is necessary, such as abuse of power or a change in the principal’s wishes.
Generally, unless the power of attorney specifies otherwise, the following three categories can revoke (override):
- The principal themselves, as long as they are mentally competent;
- The principal’s guardian, if they have been granted the relevant guardianship authority; and
- The court, particularly in cases where the agent’s actions are not in the Principal’s best interests.
Read on to understand how these different categories may revoke a power of attorney.
- The principal can revoke their POA anytime, provided they are mentally competent.
- While the principal has the authority to revoke their POA, their family members don’t.
- If the principal is incapacitated, a court-appointed guardian with appropriate authority can revoke the POA.
- The court can revoke a POA if there’s evidence of misuse or harm to the principal’s interests.
Key Points to Keep in Mind
Before we delve into who can override a power of attorney, it’s important to understand a few key points.
First, it’s crucial to note that a power of attorney can be amended, but you must meet all legal requirements. If you wish to make changes or modifications to an existing POA, you must make the changes in writing, notify the agent and anyone who has the POA, and record the changes if the original POA was recorded.
However, sometimes it’s easier to revoke the entire existing POA and create a new one, especially if the modifications are significant (e.g., renaming your agent).
Secondly, the existing power of attorney must be revocable for the principal or the guardian to revoke it. Powers of attorney are fundamentally revocable by nature, so if the POA you plan to revoke does not state that it’s irrevocable, then you’re good to proceed.
How irrevocable is an irrevocable POA?
Most POAs are revocable in nature. But if you have an irrevocable POA, a significant reason needs to be present to revoke it, and it would generally require appearing in front of a judge to evaluate and consider the specific circumstances.
Lastly, if the existing power of attorney is registered (e.g., for a real estate transaction at the local Recorder’s office), you must register the revocation at the same office.
We recommend that you check your state laws for the most accurate information on revoking your power of attorney before proceeding.
The principal (the person who created the POA) has the authority to revoke their POA at any time, as long as they are of sound mind (i.e., not incapacitated).
It’s important to note that such authority does not apply to the principal’s family members. Their spouse, children, or next of kin do not have the authority to revoke the POA.
Here’s how a principal may revoke their power of attorney (if the POA does not specify any other ways for revocation):
- Prepare and sign a revocation of power of attorney. Typically, the signature requirements for the revocation should match the original POA; in other words, if you had a notary public present when you signed the original POA, you should have one for your revocation as well. Witnesses are not required but may be prudent, especially if future challenges to your mental competence are possible.
- Notify the previously appointed agent and all relevant individuals and institutions with the POA on record of this change. You can do so by sending copies of the revocation document while you keep the original. Informing all relevant parties is extremely important, as the previously appointed agent no longer has the authority to act on your behalf once the revocation document is signed properly.
- Destroy all existing copies of the original power of attorney.
Does destroying the POA document revoke it?
Simply destroying a power of attorney document does not guarantee its revocation, especially if the agent possesses a copy and is unaware of the revocation.
If the principal no longer has the mental capacity to revoke their power of attorney and has a guardian appointed by the court to act on their behalf, the guardian may have the legal authority to revoke the principal’s POA.
If the guardianship is plenary (granting full authority), the guardian with the ability to enter into contracts can typically revoke the POA. However, if the guardianship is limited, it’s crucial to ensure that the guardianship extends to legal matters.
Similar to the principal, the guardian can revoke the POA by preparing a revocation of power of attorney and following the steps mentioned above.
► READ MORE: How to Get Guardianship of a Parent
In certain circumstances, the court may have the authority to revoke a power of attorney.
If the principal is not mentally competent and you believe that the POA is being misused or that the agent is not acting in the principal’s best interest, you can request the agent to step down.
If the agent agrees, the alternate agent appointed in the POA will take over the role. If there was no nomination of an alternate agent, either the POA terminates, or you can petition a court to appoint a conservator or guardian if the principal is incapacitated.
If the agent refuses to be removed, you may take legal action and challenge the POA in court. The court will evaluate the evidence presented and decide based on the case’s merits.
Step 1: Investigate and Gather Evidence
If the case goes to court, keep in mind that you will likely be asked to:
- Convince a judge that the agent needs to be removed, and
- Prove that the principal is unable to make decisions due to mental incapacity.
Therefore, gathering strong evidence to present in court is crucial when challenging a power of attorney.
If you are trying to revoke the POA because you believe the agent isn’t fulfilling their duties, consider the following questions before you proceed to file a lawsuit:
- Have you reviewed the POA document to understand the scope of the agent’s authority and responsibilities?
- Have you clearly communicated your concerns to the agent? If so, what was their response?
- Is the agent’s action (or inaction) directly harming the principal’s interests? If so, how?
- Do you have evidence (e.g., video recordings, financial records) on how the agent failed to fulfill their duties?
Step 2: File a Lawsuit
After you have gathered enough evidence, you or your representative will file a lawsuit against the agent. The lawsuit should outline the reasons for challenging the POA and provide supporting evidence.
The individual filing the lawsuit should have a legitimate interest in challenging the POA, such as a family member or a concerned party (e.g. a social worker).
While legal representation is not mandatory, it is advisable to consult with an estate planning attorney who specializes in power of attorney matters.
Step 3: Attend Court Hearing
After filing the lawsuit, you will need to attend a court hearing. During the hearing, both parties will present their arguments and evidence. It is essential to be prepared and present your case in a clear and concise manner.
If you are represented by an experienced lawyer, they will guide you through the hearing process, present your case, and advocate on your behalf. It is important to follow their advice and provide any additional information or documentation requested by the court.
Step 4: Court Decision
Following the court hearing, the judge will make a decision based on the evidence presented and the applicable laws. Generally speaking, one of the following three may happen:
- The court decides to invalidate the POA entirely. In this case, the court would appoint a conservator or guardian to represent the principal.
- The court imposes certain limitations or conditions on the agent’s authority.
- The court dismisses your claim. If this happens, the agent will maintain their powers and continue to act on the principal’s behalf.
In some cases, the court may appoint a temporary agent or guardian to act on your behalf while the case is ongoing.
It’s important to abide by the court’s decision and ensure that all relevant parties, including financial institutions, healthcare facilities, and other institutions, are notified of the revocation or any changes made to the POA.
Understanding who can override a power of attorney is essential for protecting the principal’s autonomy and well-being.
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.
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