Who Can Override a Power of Attorney? Rights and Limitations

A power of attorney allows a person (the Principal) to designate a trusted individual (the Agent) to act on their behalf if they cannot do so themselves — typically because of old age or declining health. It is valuable in various situations, such as managing financial affairs, healthcare decisions, or handling property matters when the principal is unable to do so themselves.

Like any legal instrument, a Power of Attorney comes with its own set of rules and limitations. One critical aspect to consider is who can override a Power of Attorney, as it involves the delicate balance of protecting the principal’s interests while ensuring that the designated agent’s authority is appropriately regulated.

Reasons to Override a Power of Attorney

Overriding a power of attorney (POA) refers to a situation where someone (usually a court or government agency) intervenes and takes control of a situation within the scope of the agent’s authority under the POA. Here are some common reasons why this might occur:

The agent is acting outside the scope of their authority: If the agent is making decisions or taking actions that are not authorized under the POA, the principal or a third party may seek to override the agent’s authority.
The agent is not acting in the principal’s best interests: If the agent makes decisions or takes actions not in the principal’s best interests, the principal or a third party may seek to override the agent’s authority.
The agent cannot fulfill their duties: If the agent becomes incapacitated, is no longer able to perform their duties, or has died, a court or government agency may need to intervene to ensure that the principal’s interests are protected.
There is a dispute over the validity of the POA: If there is a dispute over the validity of the POA, a court or government agency may need to intervene to resolve the issue.
The principal can no longer make decisions for themselves: If the principal becomes incapacitated or otherwise unable to make decisions, a court or government agency may need to intervene to protect their interests.

Who Can Override a Power of Attorney?

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) abuses 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 must act in the Principal’s best interest. Suppose you believe an Agent is taking advantage of their Principal and wish to override power of attorney. In that case, you may need to challenge it in court and provide evidence that the Agent is grossly negligent or abusive.

How to Revoke 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. Still, it’s preferable if they fill out a formal revocation of power of attorney form.
Notify the Agent — Through your attorney, request that the Agent step down if the Principal will not revoke the POA. If the Agent refuses, the role falls to the Alternate Agent named on the document. If no Alternate Agent is called, you must 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 a power of attorney, you must go to court. Your lawyer can petition the court to set aside a 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

Suppose an agent won’t stand down or a competent Principal refuses to revoke their authority. In that case, 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 provide reliable support in a challenging 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 appointing an appropriately trustworthy Agent is essential 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 executors of your will)
Transfer power of attorney to another person

What Happens Next?

Once your Power of Attorney is revoked, the agent’s authority to act on your behalf is immediately terminated.

It’s crucial to notify the agent and any involved institutions. Any transactions initiated by the agent without your consent are no longer valid, and you may choose to designate a new agent by creating a new Power of Attorney document if needed. It’s essential to retain copies of both the original POA and the revocation document for your records.

Additionally, consider reviewing and updating other legal and financial matters to align them with your current preferences, and if you have specific concerns or questions, seek legal guidance from an attorney specializing in estate planning and power of attorney matters.