Who Can Override a Power of Attorney?

Life can be unpredictable, and our decisions aren’t always clear-cut. To be prepared for changing circumstances, it is essential to have certain legal safeguards in place. While wills and trusts typically focus on what happens after death, other mechanisms deal with one’s assets and affairs while they are living. One of these mechanisms is a power of attorney, or “POA.”

Powers of attorney can become vital lifelines during incapacitation or unavailability, offering a method for individuals to manage their affairs indirectly. However, sometimes POAs need to be revoked or withdrawn. This page provides information on powers of attorney, questions surrounding the revocation of a POA, and how you can generate your power of attorney or revocation documents using simplified online tools.

Speak to our TrustHandled team for additional information on overriding powers of attorney, and how we might help.

 

Understanding the Power of Attorney

A power of attorney is a formal legal document that allows someone, who is known as the “principal,” to delegate certain decision-making powers to another person, referred to as the “agent” or “attorney-in-fact.” The agent can make financial, legal, or healthcare decisions for the principal’s benefit, depending on the type of POA and the terms specified in the document. This arrangement is often used when the principal cannot manage their affairs, such as during times of incapacitation or unavailability.

Powers of attorney come with a great deal of responsibility. They give an agent the power to act as a stand-in for the principal and the fiduciary duty to protect their interests and ensure their wishes are honored. There are varying kinds of POAs, each serving a specific purpose and granting varying levels of authority.

1. General power of attorney: This type grants broad powers to the agent, allowing them to decide on financial and personal matters for the principal. It remains in effect until the principal becomes incapacitated or revokes it. 
2. Limited power of attorney: This type gives the agent authority over a specific task or a limited range of decisions.
3. A durable power of attorney: Unlike a general POA, a durable POA remains valid even if the principal becomes incapacitated. 
4. Springing power of attorney: This type “springs” into effect only under specific circumstances or events, requiring clear conditions outlined in the document.
5. Medical power of attorney: This type allows the agent to make healthcare decisions on behalf of the principal. It comes into effect when the principal cannot make medical decisions.

 

What Are the Reasons for Overriding a Power of Attorney?

While a power of attorney is intended to provide convenience for a principal, some circumstances may warrant overriding this legal document. Some of the most common reasons for revoking a power of attorney include:

• Abuse or misconduct. If an agent misuses their authority or takes advantage of a POA, the principal or their loved ones may decide to challenge or revoke the arrangement.
• Incompetence or incapacity. If an agent is acting incompetently or can no longer fulfill their duties due to physical or mental impairment, the POA may be revoked.
• Changing circumstances. If a principal’s situation or preferences have shifted since granting the POA, they may choose to adjust or withdraw it.

 

Who Has the Right to Challenge a Power of Attorney?

Powers of attorney can be challenged for various reasons, but it’s important to note that not just anyone can revoke one. The right to challenge or override a POA typically falls with those with a legal interest. These include:

1. The principal. A principal can revoke their power of attorney at any time, given that they are mentally competent.
2. Family members. Close relatives, such as spouses, children, or parents, may have standing to challenge a POA if they believe an agent is not acting in the principal’s best interests.
3. Courts and legal authorities. In cases where there is evidence of wrongdoing or incompetence on the part of an agent, a court may intervene and revoke the POA.

 

How the Principal Can Take Away the Power of Attorney From Someone

When concerns arise regarding the actions or decisions of an agent under a power of attorney, a principal may decide to take action to override the arrangement. If a principal wants to revoke their power of attorney, they can do so at any time by following certain legal procedures. For revocation to be valid, a principal will need to adhere to the steps outlined below:

1. Draft the revocation document. The principal must make a written statement clearly outlining their intention to terminate the POA. The document should include the principal’s name and contact information, the agent’s name, and the date of the original POA.
2. Sign the revocation document. Add your signature to the revocation document in the presence of two credible witnesses, and have them both sign it.
3. Create and distribute copies. Notify all interested parties of your POA revocation, such as the agent, your relatives, or relevant institutions, to ensure they are aware of this change. You should also deliver copies of your revocation document to everyone involved.

 

How a Third Party Can Override a Power of Attorney

In certain circumstances, a third party may need to override a power of attorney, especially if they suspect abuse, fraud, or misconduct on the agent’s part. If someone other than the principal decides to challenge a POA, they will need to follow the steps below:

1. Speak to the principal. If possible, third parties must communicate directly with the principal. He or she may be unaware of any wrongdoing, so expressing your concerns can help to shed light on why it could be prudent to revoke the POA.
2. Address the agent. If concerns persist after speaking with the principal, or if he or she cannot communicate, the next step is to address the agent directly. Sometimes, the agent may voluntarily step down or work towards a resolution to address any issues.
3. File a petition with the court. When all else fails, it may be necessary for a third party to take legal action. This typically involves presenting evidence of an agent’s misconduct or incompetence. The court will then review the case and decide whether to revoke the POA.

 

Use TrustHandled to Generate Revocation Forms, POAs, and Other Documents

Regarding powers of attorney, revocation documents, and court petitions, following the legal procedures and requirements in your jurisdiction is crucial. However, this can be easily accomplished without relying on an attorney, saving you money on legal fees and time in office consultations.

TrustHandled, a convenient and reliable online platform, offers a comprehensive suite of legal document templates, including estate planning documents, POA templates, and other important forms. Everything can be customized to your specific needs and generated in accordance with local laws. Give us a try by creating your TrustHandled account today.