Who Can Override a Power of Attorney?
It’s important to understand who may be able to override a Power of Attorney. While a properly executed power of attorney should provide the agent designated with broad authority over your affairs, there are limited circumstances where others can step in and override the agent’s decisions or revoke the power of attorney altogether. It’s important to be aware of who can potentially override a power of attorney to ensure that that your goals are met.
What Is a Power of Attorney?
A power of attorney is a legal document that allows you to appoint an agent to act on your behalf. The agent designated in the power of attorney document is typically called an “attorney-in-fact” or “proxy.” This individual can handle financial, medical, or other legal decisions in the event you become incapacitated or unable to act for yourself.
There are two main types of powers of attorney:
- Durable power of attorney – Remains in effect if you become incapacitated. This allows your proxy to continue handling matters on your behalf even if you cannot make your own decisions.
- Springing power of attorney – Only goes into effect if you become incapacitated. It “springs” into action at the designated time. This option allows you to retain control of your affairs as long as you are able.
The person appointed as power of attorney proxy has a fiduciary duty to act in your best interests. However, in some cases, certain individuals may petition the court to override or revoke the authority granted to an attorney-in-fact. The court may rule that the proxy is acting improperly or not fulfilling their responsibilities. Family members concerned with the proxy’s conduct often file petitions to revoke powers of attorney. The court can then terminate the proxy’s authority if deemed appropriate and in the principal’s best interests.
Setting up a power of attorney is an important part of advance planning and helps ensure financial, medical, and personal matters will be properly handled if someone becomes unable to act for themselves. But it also allows for the possibility of overriding the proxy’s authority should that become necessary to protect said person. Discussing your power of attorney decisions with close family members and your attorney can help avoid confusion and conflict in the future.
When Can a Power of Attorney Be Revoked?
A power of attorney can typically be revoked at any time by the principal, the individual who granted the power of attorney. However, there are a few exceptions:
Irrevocable Powers of Attorney
Some powers of attorney are irrevocable, meaning once granted they cannot be revoked. This is uncommon but may be stipulated in the power of attorney document. If a power of attorney is irrevocable, the principal no longer has the authority to revoke it.
Incapacitation of the Principal
If a principal becomes incapacitated or incompetent, they lose the legal ability to revoke a power of attorney. At this point, only a court order can override the agent’s authority. Family members or friends concerned about the agent’s decisions or authority can petition the court to review and potentially revoke the power of attorney.
Death of the Principal
Once a principal passes away, a power of attorney is automatically terminated. The agent no longer has any authority to act on the principal’s behalf. If there are remaining financial or legal matters to handle, the executor named in the principal’s will or an administrator appointed by the court will need to manage them.
In summary, while a principal generally maintains the right to revoke a power of attorney, there are a few scenarios where that authority is lost. Understanding when a power of attorney cannot be overridden is important for both principals and agents to avoid legal issues and ensure the principal’s wishes are carried out. With the proper safeguards and oversight in place, a power of attorney can be an effective estate planning tool.
Discover the Power of BlueNotary:
Integrate your Business, Title Company, or Law Firm to Satisfy your Customers and Decrease Turnaround
Get a document Notarized/Sign-up
Join the Free Notary Training Facebook Group
Can a family member revoke a power of attorney?
Can family members override or revoke a power of attorney? In some cases, yes. Certain circumstances may allow close relatives to contest or revoke an existing power of attorney.
Revocation by the Principal
The person who granted the power of attorney, known as the principal, retains the right to revoke it at any time as long as they are still competent. They can do so by signing a written revocation statement and providing notice to the agent and any institutions where the POA was used. Upon revocation, the agent’s authority is terminated immediately.
Challenge Due to Incapacity
If the principal becomes incapacitated, family members may petition the court to suspend or revoke the power of attorney. They must provide evidence that the principal lacked mental capacity at the time they executed the document. The court will evaluate the principal’s condition and the POA to determine if it should remain valid or be revoked. During this process, the agent’s authority may be suspended.
Challenge Due to Misuse of Authority
Relatives can also challenge a POA if they suspect the agent is misusing their authority or not acting in the principal’s best interests. They must file a petition in court requesting to have the agent’s powers limited or revoked. The court will review the allegations and POA to decide if the agent should be removed or subject to greater oversight and restrictions. The principal, if still competent, should also be notified of the challenge.
To summarize, the principal, incapacitated principal’s family members, and principal’s family members suspecting misuse of authority can override or challenge a power of attorney. However, as long as the principal created the POA voluntarily and the agent acts responsibly within the scope of their authority, a properly drafted power of attorney is typically difficult to revoke without cause. Close relatives should voice concerns to the principal before pursuing legal action.
How to Revoke a Power of Attorney
Once a power of attorney has been created, there are a few ways it can be revoked or overridden. As the principal, you maintain the right to revoke your POA at any time as long as you are still competent. However, if your competency comes into question, other parties may be able to override your POA.
Revoking Your Own POA
As the principal, you can revoke your POA by:
- Creating a new power of attorney document that specifically revokes any previous documents. This is the cleanest method and avoids confusion.
- Physically destroying the original document. While effective, this can be difficult to prove and may still leave room for dispute.
- Submitting a written statement revoking the POA. Have the statement notarized and provide copies to your agent(s) and any institutions where the POA was filed.
Once revoked, notify any parties who had a copy of the POA or were acting under its authority. This includes financial institutions, medical facilities, and your agent(s).
Challenging a POA’s Validity
In some cases, a POA can be overridden by others. Common reasons for challenging a POA include:
- Lack of competency or capacity: If the principal did not understand or was unduly influenced at the time of signing, the POA may not be valid. Family members or a court- appointed guardian can petition to override the POA.
- Fraud or abuse: If the agent is found to be acting fraudulently or abusing their authority, the POA can be terminated. Law enforcement or adult protective services may get involved in these situations.
- Dispute between agent and family: Disagreements over care or financial decisions can lead the principal’s family or friends to challenge the agent’s POA. A court may have to determine whether overriding the POA is in the best interest of the principal.
In many cases, challenging a POA requires petitioning the court system to rule on the POA’s validity and authority. All parties should provide evidence to support their positions, including testimony from medical experts regarding the principal’s competency and capacity. The court will ultimately decide whether the POA should remain in effect or needs to be overridden in favor of an alternative solution, such as a guardianship.
Reasons to Revoke a Power of Attorney
There are several reasons why a power of attorney may need to be revoked by the principal or overridden by a court.
Lack of Capacity
If the principal becomes incapacitated after executing a power of attorney, the court may revoke the document to protect the principal’s interests. Incapacity refers to a deterioration in the principal’s mental abilities that prevents them from managing their own affairs. The court may appoint a guardian to handle the principal’s needs if the power of attorney is no longer suitable.
Abuse or Misuse of Authority
If the attorney-in-fact abuses or misuses their authority in a way that harms the principal, the court may step in to revoke the power of attorney. For example, if the attorney-in-fact fails to act in the principal’s best interests or steals money or property from the principal. In some cases, the abuse may warrant criminal charges against the attorney-in-fact.
Undue Influence
A power of attorney can also be challenged in court if it can be proven that the principal executed the document under undue influence, coercion, or duress. For instance, if a caregiver or family member pressures an elderly principal into signing a power of attorney when they are not fully capable of understanding the implications. The court may revoke a power of attorney that was obtained through manipulative or deceptive means.
Changed Circumstances
Changed circumstances, unforeseen at the time the power of attorney was created, may warrant revocation or override. For example, if the attorney-in-fact named in the document is no longer willing or able to serve, or if there are irreconcilable differences between the principal and the attorney-in-fact. A court may step in to revoke the existing power of attorney so a new one can be executed.
In summary, powers of attorney can be revoked or overridden by the court to protect the principal’s interests and well-being. Close monitoring and an understanding of these circumstances that may warrant revocation can help prevent issues from arising.
Alternatives to Revoking Power of Attorney
Alternatives to Revoking Power of Attorney
There are a few alternatives to revoking a power of attorney that can help address issues with how the agent is performing their duties. These options aim to modify the existing agreement rather than cancel it altogether.
One option is to amend the power of attorney to place restrictions or limits on the agent’s authority. For example, the principal can specify that large financial transactions over a certain dollar amount require approval, or that the agent cannot sell or transfer certain valuable assets. The principal can also amend the document to require the agent provide detailed accounts of their actions at regular intervals.
Another choice is appointing a co-agent or successor agent to act jointly with the original agent or replace them if needed. A co-agent would share power with the current agent and provide oversight, while a successor could step in if the original agent is unable or unwilling to continue serving. The principal should specify in the amended power of attorney the circumstances under which the co-agent or successor would take over.
As a last resort, the principal can petition the court to review the agent’s conduct and compliance with their fiduciary duties. The court may issue instructions to the agent, require them to account for their actions, or in severe cases remove the agent and appoint a guardian or conservator to handle the principal’s affairs. Court intervention should only be used in cases of clear wrongdoing or negligence since it can damage the relationship with the agent and be an expensive process.
There are several options for addressing issues with an agent’s performance before needing to revoke the power of attorney altogether. Amending the existing agreement to limit authority or add oversight, appointing additional agents, or pursuing court review can help remedy the situation while preserving the principal-agent relationship. The specific approach will depend on the unique circumstances in each case.
Conclusions on Who Can Override a Power of Attorney
In the end, while a power of attorney can be an effective estate planning tool, it is not absolute. There are several parties that maintain the ability to override or terminate a power of attorney under certain circumstances to protect the principal. As the principal, it is important to understand these overrides to put appropriate safeguards and guidance in place. Work closely with your attorney to ensure your power of attorney aligns with your wishes and protects your best interests. Your attorney can also advise you on any state-specific laws regarding overrides that you need to be aware of based on where you live. By being proactive and informed, you can have greater confidence and control over your own wellbeing even if you become incapacitated.
FAQ
Q1. Who can revoke a power of attorney?
The principal (the person who granted the power of attorney) can revoke it at any time as long as they are competent. If the principal is incapacitated, a court can revoke it.
Q2. Can a power of attorney be revoked if the principal is incapacitated?
If the principal is incapacitated, family members or concerned parties can petition a court to review and potentially revoke the power of attorney due to misuse or the principal’s incapacity.
Q3. What can be done if a power of attorney is being misused?
Relatives can challenge a power of attorney in court if they suspect misuse of authority or that the agent is not acting in the principal’s best interests. The court may limit or revoke the agent’s powers.
Q4. Are there alternatives to revoking a power of attorney?
Yes, alternatives include amending the power of attorney to limit the agent’s authority, appointing a co-agent for oversight, or petitioning the court for review of the agent’s actions without full revocation.
