Who Can Override the Power of Attorney?
Introduction
A power of attorney form (POA) is handy when you must appoint an individual to act in your best interests if you are incapacitated or to authorize someone to take specific action on your behalf. Still, in some instances, a power of attorney must be revoked after signing it. How to overturn power of attorney and who can revoke a power of attorney are the questions the following guide aims to answer. The process of revocation can be complex. To navigate these complexities, you may need the assistance of a probate litigation lawyer.
The method depends on who can override a power of attorney, the type of POA, and the reasons to override the authorization. For more detailed information, feel free to visit Lawrina, where we facilitate expert legal advice. By the end of this guide, you will be well-acquainted with the power of attorney documents. But remember, there's a variety of legal documents available. If you are also interested in business affairs, you can find other business-related templates.
What Is a Power of Attorney?
A power of attorney is a legal authorization granted by one individual known as the principal to another individual known as an agent or attorney-in-fact to act in the principal's best interests. As a legally binding document, a POA should be written and witnessed and include specific details to be legally valid.
The principal may wish to grant a power of attorney purely for convenience purposes, for example, when the principal is selling a car or real estate and doesn't want to close the transaction in person.
Other situations when the principal may need an agent to represent them include temporary disability or permanent incapacity due to accident or illness. When someone is incapacitated and has not appointed an attorney-in-fact to act in their best interests in advance, the court may need to choose someone to work instead of the incapacitated person, known as guardian, conservator, or committee. Since most people prefer to choose their own attorney-in-fact, making a power of attorney in advance is crucial to avoid guardianship.
Depending on the type and purpose of a power of attorney, the POA can be general in nature or only a particular activity, such as:
Signing documents;
Opening bank accounts and fulfilling financial transactions;
Selling and managing property;
Filing taxes;
Handling administrative issues;
Interacting with third parties, such as banks or creditors;
Choosing end-of-life medical treatment.
What Can’t a POA Do?
A power of attorney grants an individual the right to make decisions concerning business, finances, health care, and real estate. However, the attorney-in-fact does not have complete control over the principal's life. There are a few things the agent cannot do, regardless of the type of POA or the wording of the document. This includes having the right to:
Make decisions for the principal after death;
Transfer the POA to another person;
Vote on the principal’s behalf in an upcoming election;
Amend or override the principal’s will;
Go against the principal’s wishes for their end-of-life treatment;
Act in a way that is against the principal’s best interests.
What Types of Power of Attorney Are There?
The main types of a power of attorney template vary by duration when it comes into effect and the scope of authorization.
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Depending on the duration of a power of attorney, the POA can be durable or non-durable:
A durable power of attorney remains valid until revoked and expires only after the principal’s death. In some instances, when POA is used for estate planning purposes, it is made durable to remain in effect even if the principal becomes incapacitated.
Non-durable power of attorney, which includes a specific termination date, typically used for transactions with property or other actions.
The POAs also differ in how they come into effect:
The traditional power of attorney becomes effective immediately after it is made, properly executed, witnessed, and signed.
Springing POA gains its legal force at a later date when a specified condition is met. Sometimes, a springing power of attorney is used in estate planning for cases when the principal becomes incapacitated. Until that happens, the agent has no authorization and only “springs” into action once the condition is met.
A power of attorney can be general, authorizing the attorney-in-fact to act in all situations allowed by law. Alternatively, the principal may wish to make a limited power of attorney authorizing their agent for specific action only, for example, to close a transaction or sign a specific document.
Other types of power of attorney include:
Financial POA, which authorizes the agent to make decisions regarding monetary payments and assets, for example, paying bills, collecting retirement benefits, filing taxes, selling or renting property,
Medical POA, authorizing the agent to make medical decisions on behalf of the principal, including medical treatment, end-of-life care, and choice of healthcare providers,
Military POA, which allows service members to handle their personal affairs and manage their assets while away.
What Are the Limits of a Power of Attorney?
Depending on its terms, a power of attorney can be limited to specific circumstances, transactions, or periods or be general where the agent's authorization is only limited by law.
A power of attorney will only be upheld in court if made when the principal is of legal age and in sound mind when signing the document. The POA is legally binding only when it is written, includes all necessary data, and is executed according to state law.
How To Set Up the Power of Attorney?
Although a power of attorney example is a standard document, it has far-reaching implications and should be set up correctly to ensure it is valid and provides the proper authorization to the attorney-in-fact to act when and as expected. Below is an outline and detailed guidelines for setting up a power of attorney.
1. Choose the right person
While your agent can make critical decisions on your behalf, it is important to choose the right person who will act in your best interests under the POA. Since an attorney-in-fact does not have to be someone who practices law, many individuals choose to appoint their spouses or other family members as their agents by a power of attorney.
Most importantly, the agent should be of legal age and sound mind at the time the POA is made. It is also essential to name at least one successor agent in a power of attorney to be responsible and address cases when the initial attorney-in-fact is incapacitated or is not available.
2. Discuss the responsibilities
The attorney-in-fact should act in good faith and in the principal's best interests. To do so, the agent should be willing to look after those best interests, have knowledge about the principal's state of affairs, and have a clear understanding of what is expected.
During the initial discussion, the principal can check whether their attorney-in-fact is prepared to devote their time and attention to the principal's affairs. They can also check whether the person they want to have as their attorney-in-fact has natural abilities to attend to the needs and interests of the principal and the necessary experience required to make sound financial choices.
Since the attorney-in-fact need not be a legal professional, it is also essential that the agent clearly understands the role and the rights they have assuming under the POA. The principal may wish to reiterate the terms of a power of attorney for the agent, including:
The moment a power of attorney becomes effective or expires;
How the principal expects the agent to act in various scenarios;
Possible tax implication in making gifts on the principal’s behalf and other tax-related instances.
Questions to ask a potential attorney-in-fact
The principal may find out if the attorney-in-fact is willing and able to act in the principal’s best interests by discussing various scenarios and questions related to the latter’s fiduciary responsibilities, for example:
Do they have time to fulfill duties foreseen by a power of attorney?
Does the attorney-in-fact feel capable of managing any financial, medical, tax, or other aspects of the principal’s affairs as foreseen by a power of attorney?
Are there any questions about any of the authorizations provided by the POA?
If any concerns may prevent the agent from acting under a power of attorney, for example, any health or personal conditions?
Are there any disputes between the agent and the principal’s family that may impact the latter’s ability to act on the principal’s behalf?
4. Choose the right type of POA
When authorizing an agent to act on your behalf, choosing the right type of power of attorney from available POA options is essential to provide the right authorization under the circumstances. For example, some may choose non-springing durable POA options for estate planning to avoid delays due to the complicated process of determining whether someone is incapacitated.
When the principal wants different people responsible for healthcare and finances, they may create separate medical and financial POAs. Similarly, when the purpose of a power of attorney is to authorize the agent for a specific transaction, the power of attorney authorization will be limited to a particular activity, for example, selling property.
5. Draft the document: What to include in a power of attorney
A power of attorney is a standard legal document that should include the personal information of the principal and attorney-in-fact's personal information and the authorization's details. Specifically, a POA shall contain the following components:
The title “Power of Attorney” at the top of the page;
Date when the document was signed;
Date of expiration (for non-durable power of attorney);
Name of the principal;
Name and address of the attorney-in-fact;
Scope of authorization detailing the rights of the agent and any specific wishes of the principal;
Signatures of the principal and the agent(s).
6. Legalize it: How to make a POA legally binding
Although, in some cases, it is possible to authorize someone verbally for specific actions, in most situations, a principal needs a written POA to authorize someone to act on their behalf. In addition, most institutions, such as banks and other organizations, would require an original copy of the POA.
The rules and legal requirements for power of attorney can differ from state to state, so it is essential to learn about your state's requirements. In many situations, state law requires the POA to be notarized. Many principals prefer to notarize general power of attorney even when not required to have the power of attorney document honored by banks and other institutions.
7. Document it properly
You need to write POA correctly to have a valid authorization that aligns with your intentions.
In addition to having all essential components, such as the title "Power of Attorney," names of the principal and the attorney-in-fact, and other details, a POA should clearly outline the agent's responsibilities and limitations. It should also contain provisions that could nullify the authorization.
8. Make updates and changes
After the principal makes a power of attorney, it is essential to periodically revisit its terms and check whether the choice of the agent allows the best representation of the principal's interests. Sometimes, the principal may wish to update a POA to reflect personal circumstances, family situations, or state law changes.
For example, when the principal is remarried, they may want to stop their children or former spouses from serving as agents authorized under durable POA during the previous marriage. In other instances, a principal may believe their attorney-in-fact no longer serves their best interests and wish to transfer the power to a new agent.
The principal may want to amend other terms of a power of attorney, such as the scope of the authorization, giving the attorney-in-fact specific rights. In most situations, including changing the agent or modifying authorization, the safe way to make such updates is to revoke the existing POA and prepare a new document.
Reasons To Override a Power of Attorney
There are times when the principal wishes to revoke the power of attorney document after signing it. For example, they may grant a family member control over their finances after they become mentally incapacitated. However, if this family member develops a gambling addiction, steals, or handles the money unwisely, the principal may wish to override the POA and pass the authority to make important financial decisions to another person.
Likewise, if familial relationships deteriorate and the principal no longer believes their appointed attorney-in-fact will act in their best interests, they may wish to override a power of attorney and appoint another agent. The principal may only revoke the POA if they are still of sound mind themselves. Below are some examples of when a family member may wish to get POA revoked:
The power of attorney should have ended, and the document is invalid;
The agent is not acting in the principal’s best interests and is robbing them of their assets;
The principal was not of sound mind when creating a power of attorney;
The attorney-in-fact is physically abusing the principal.
Who Can Override a POA?
There are some instances in which someone other than the principal wishes to have the legal document withdrawn. But can a POA be revoked by you if you aren't the principal? If not the principal themselves, who can override a power of attorney? Can a family member override a power of attorney? And what reasons would they have? Here is the list of individuals and institutions having the right to override a POA:
The court: A court has the authority to review and potentially revoke or modify a power of attorney if there is sufficient evidence of abuse or misconduct by the agent.
The principal: The person who granted the power of attorney can revoke or modify it at any time as long as they are of sound mind and have the legal capacity to do so.
A guardian or conservator: If a court has appointed a guardian or conservator for the principal, they may have the authority to override or modify the power of attorney if it is deemed necessary for the best interests of the principal. Typically, it will be close family members, such as a spouse, adult children, siblings, or a parent. This usually happens when the agent abuses their rights and exploits the principal.
The agent: Can a power of attorney be reversed by the person who created it? In some cases, the agent named in the power of attorney document may choose to voluntarily relinquish or terminate their authority.
Steps to Withdrawing Power of Attorney
Another question to answer is how to override power of attorney. If the principal is mentally competent, they can terminate the power of attorney at any point, regardless of their reasoning. Verbally overriding the POA is technically legal. However, it is better to write "revoked" over the legal document with the date and a signature. A copy of this version should then be sent to all third parties and agencies with a copy of the POA. Alternatively, they can complete a revocation of power of attorney form to formally override the legally binding document.
On the other hand, you can reverse power of attorney if you are not the principal, but this does require legal action. The person seeking to revoke the POA must challenge it in court and prove that the attorney-in-fact is acting grossly negligent or abusively. Therefore, follow these steps on how to override a power of attorney for the best chances of success:
Speak to the principal: If the principal is of sound mind, speaking to them should always be the first step. Voicing concerns over exploitation or abuse may convince the principal to override the POA themselves. This is possible by using the method above and will avoid the need for legal action. If they are legally defined as mentally incapacitated or are too scared or unwilling to withdraw a power of attorney themselves, move on to step two.
Speak to the agent: The next step is to speak to the agent and request they step down from their role as agent. Do this through an elder law attorney. When the attorney-in-fact agrees, their role passes on to the alternate power of attorney as outlined in the document. When no alternate agent is named, you must go through court proceedings to find a suitable candidate. In cases where the agent refuses to revoke the POA, move on to step three.
Prepare for court: The case will go to court if the principal and the agent both refuse to override the POA. While in the courtroom, the judge needs to be convinced that revoking a power of attorney is in the principal's best interests. This could either be by providing evidence of abuse of the agent's rights or proving that the principal's wishes to keep the attorney are due to mental incapacity.
Conclusion
There are several ways to override a power of attorney. A principal of sound mind can do so easily by making the agent and relevant third parties aware either verbally or in writing. Others can revoke a POA when the power of attorney rights are being abused. This usually requires going to court, so appoint an experienced lawyer specializing in elder and/or disability law for the best chances of success.
Inna Chumachenko is the Content Lead at Lawrina. She is responsible for managing all the content found on the blog, guides, and other website pages. Inna has a degree in philology and a vast interest in law. In her role at Lawrina, Inna oversees the content team, establishes collaborations with writers, and curates content from various contributors.
If you have any questions or suggestions regarding the content for Lawrina, please feel free to contact Inna directly via email at i.chumachenko@lawrina.org or connect with her on LinkedIn.
Frequently Asked Questions
In most situations, yes. You can revoke a power of attorney at any time as long as you are mentally competent and not legally incapacitated. It is best to revoke a POA by signing a document called a Notice of Revocation and notifying everyone who needs to know about such revocation.
Yes, a principal can assign more than one attorney-in-fact in one POA as co-agents to fulfill the same or distinct duties, for example, medical and financial representation.
In the case of giving the same authorization to several co-agents, all of them must be available when needed and agree on the course of action. For this reason, when appointing multiple attorneys in fact for the same duties, you must specify how you expect them to act without an agreement or if one of them is unavailable.
You can make your power of attorney based on DIY templates adding your details as a principal and information about the agent and the specifics of your authorization. In case of complex authorization, you may wish to speak to a legal professional to account for your circumstances in the POA.
In a general case, your POA is valid after you have made it and properly executed it, regardless of the state of your residency.
However, it may be a good idea to review a power of attorney after moving to another state to account for the new state law or changes in the circumstances which may affect the representation of your interests.