Who Can Override a Power of Attorney?

Who can override a Power of Attorney (POA) depends on the type of POA in question and why cancellation is being sought.

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. A durable power of attorney doesn’t expire if the Principal becomes incapacitated.

Related: Types of Power of Attorney: 5 Different Powers of Attorney Explained

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:

1. 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.
2. The agent is not acting in the principal’s best interests: If the agent is making decisions or taking actions that are not in the principal’s best interests, the principal or a third party may seek to override the agent’s authority.
3. The agent cannot fulfill their duties: If the agent becomes incapacitated, is no longer able to fulfill their duties, or has died, a court or government agency may need to intervene to ensure that the principal’s interests are protected.
4. 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.
5. The principal can no longer make decisions for themselves: If the principal becomes incapacitated or otherwise unable to make decisions for themselves, a court or government agency may need to intervene to ensure their interests are protected.

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 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:

1. 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.
2. Approach 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 named, you must make a court application for a guardian and/or conservator to take care of the Principal’s interests.
3. 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 the power of attorney.

An attorney can also work with experts to determine the Principal’s mental competence and provide reliable support in what can be 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

Related Resource: What is Power of Attorney?