A power of attorney (POA) is a legal document that appoints an individual with control over another person’s life, decisions, and wellbeing. They stand strong in a court of law, but in certain situations, a person can revoke a power of attorney after it has been fully enacted. The method of doing so depends on the type of POA and the reason for overriding it. Let’s look at the rights and limitations of this legal document and how to override a power of attorney in the United States.
What is a Power of Attorney?
A power of attorney, which is a legal document, gives an individual (known as the attorney-in-fact or the agent) legal control over the decisions of another person (known as the principal), allowing them to act on the principal’s behalf. The agent’s precise rights depend on the type of POA, financial or medical. They can be extremely broad or extremely limited, depending on the wording of the document. Here are a few examples of some of the decisions an attorney-in-fact may have legal control over:
- Handle administrative tasks while the principal is traveling;
- Complete financial transactions or open bank accounts;
- Deal with third parties such as banks;
- Sign legal documents on the principal’s behalf;
- Choose appropriate end-of-life medical treatment as per the principal’s wishes;
- File taxes on the principal’s behalf;
- Sell and manage property and real estate.
A POA is typically put in place when the principal becomes legally “incapacitated” and unable to make decisions for themselves on matters regarding finance, real estate, or business such as those listed above. For example, the principal may have a mental incapacity that prevents them from managing their own affairs. Also, a temporary POA may be necessary if the principal is in the hospital or on holiday and needs someone to make important decisions until they are discharged or back in the country. However, at the time of appointing an agent and making a power of attorney, the principal must have full mental capacity and be aware of their choices.
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?
There are several different types of power of attorney. Each allows the agent different rights over the principal’s affairs and decision making, and details when and for how long the POA remains in effect. Therefore, every power of attorney is either:
- Durable or Non-Durable: All POAs will be either durable or non-durable. The former stays intact when the principal becomes legally incapacitated. On the other hand, a non-durable power of attorney will end once the principal is no longer mentally sound. In many jurisdictions, a POA will automatically be considered durable unless stated otherwise.
- Limited or General: General powers of attorney are the most common and provide the attorney-in-fact with broad control over the principal’s decisions. These often give the agent broad financial power, which explains why they are sometimes referred to as a financial POA. Comparatively, a limited POA (also known as a special power of attorney) only authorizes the agent to make decisions on highly particular matters. For example, for signing one specific document on the principal’s behalf.
- Springing or Immediate: An immediate power of attorney legally goes into effect as soon as the parties sign the document. On the other hand, a springing POA “springs” into action at a later date, usually after the principal becomes incompetent. As such, a springing power of attorney will always be durable.
In addition to these three categories, there is a special power of attorney relating to health care known as a medical POA or a health care POA. This is a durable springing power of attorney that is limited to controlling decisions over end-of-life treatment. In some U.S. states, this is one of the advance directive documents used to ensure loved ones know the correct health care decisions for the principal as they near the end of life.
Reasons to Override a Power of Attorney
There are times that 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 the power of attorney and appoint another agent. The principal may only revoke the POA if they are still of sound mind themselves.
However, there are some instances in which someone other than the principal wishes to have the legal document withdrawn. But can you override a power of attorney if you aren’t the principal? If not the principal themselves, who can override a power of attorney? And what reasons would they have? Typically, it will be close family members such as a spouse, adult children, siblings, or a parent. This usually happens when the agent is abusing their rights and exploiting the principal. 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 the power of attorney;
- The attorney-in-fact is physically abusing the principal.
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Steps to Withdrawing 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 the word “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 that have a copy of the POA on file. Alternatively, they can complete a revocation of power of attorney form to formally override the legally binding document.
On the other hand, you can override 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 provide evidence 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 the 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 there is no alternate agent named, you need to 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 the 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.
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 does usually require going to court, so appoint an experienced lawyer that specializes in elder and/or disability law for the best chances of success.