Last Updated October 18, 2022
When you appoint someone to be your power of attorney, you are giving them the authority to act on your behalf in legal and financial matters. But what happens if you change your mind? What if there’s a dispute? Who can override a power of attorney? In this article, we will explore who has the authority to revoke or overrule a power of attorney arrangement.
But before we get started, although I’m a lawyer, I’m not YOUR lawyer. So always make sure you speak to an attorney to help you make decisions on your behalf and what steps need to be taken to ensure your wishes are carried out.
What Is A Power Of Attorney?
A power of attorney (also known as “POA”) is a legal document that gives someone else the authority to act on your behalf. The person you appoint is called your “agent” or “attorney-in-fact”, while the individual who has granted this permission (you) is known as the principal. A POA can give your agent broad legal authority or very limited authority.
For example, a POA document can give your agent the authority to handle all of your financial affairs. In other words, your agent can make financial decisions on your behalf, have access to your bank accounts, or have access to other financial institutions. Your agent can also handle legal actions and sign a contract on your behalf.
What Are The Different Types Of Power Of Attorney?
There are several types of power of attorney:
Durable Power of Attorney (DPOA)
This type of power of attorney remains in effect if you become incapacitated and cannot make important decisions for yourself. This type of power of attorney is usually helpful for estate planning.
Springing Power Of Attorney
This type of power of attorney only goes into effect when you become incapacitated. Once you are incapacitated, your agent can step in and make decisions on your behalf.
General Power of Attorney
A general power of attorney gives your agent broad legal authority to to handle all legal and financial matters on your behalf. For example, your agent can buy or sell property, sign contracts, file lawsuits, and make financial decisions on your behalf.
Limited Power of Attorney
A limited power of attorney gives your agent very specific legal authority to take actions on your behalf. For example, you may give your agent the authority to sell your car but not your house. Or you may give your agent the authority to sign documents relating to your taxes but not your investments.
Medical Power of Attorney
A medical power of attorney gives your agent the authority to make health care decisions on your behalf if you are unable to do so. This type of power of attorney is considered a limited power of attorney and is also known as a “healthcare proxy” or a “durable healthcare power of attorney”.
For example, a medical power of attorney can give your agent the power to make decisions about your medical care, including what type of medical treatment you should receive, what medications you should take, whether to withhold or withdraw life-sustaining treatment, and other medical decisions.
Financial Power of Attorney
A financial power of attorney gives your agent the authority to handle your finances and make financial decisions on your behalf. This type of power of attorney is considered a limited power of attorney and is also known as a “durable financial power of attorney”.
For example, your agent can have access to your bank accounts, pay your bills, file your taxes, and even buy or sell real property on your behalf.
Why Do You Need A Power Of Attorney?
You might need a POA if you become incapacitated and can’t handle your affairs. Or you might use one to appoint someone to take care of financial or business matters while you’re out of the country. For example, a person who has lost the ability to make decisions on their own behalf due to age, illness, or absence (such as in the case of overseas military duties), may grant power of attorney rights to another person.
Documents granting power of attorney can also play an essential part in the estate planning process. Older people who are getting closer to the end of their lives might use a power of attorney to ensure that their wishes are carried out if they cannot make decisions on their own. This article from the American Bar Association can help you figure out what kinds of powers you should give your agent.
Who Can Override A Power Of Attorney?
In general, only the person who created a power of attorney can override it—in other words, only the principal can override a power of attorney. If the principal is in good mental and physical health, they can revoke any and all powers of attorney delegated to an agent. While they still have the ability to make decisions for themselves, they have the right to cancel a power of attorney at any time.
However, there are instances where a power of attorney can be overridden by someone other than the principal.
Who Can Override A Power Of Attorney Besides The Principal?
There are some circumstances in which someone else other than the principal may be able to override a power of attorney. A power of attorney can also be terminated by:
- A judge
- The agent
- A third party
1. A Judge
If a principal becomes incapacitated and can no longer make decisions for themselves, then a court may override a power of attorney. The court will generally appoint a guardian or conservator who will have the authority to make decisions on behalf of the person that’s incapacitated.
2. The Agent
An agent who has been granted power of attorney may also have the authority to override the arrangement. For example, an agent may choose to resign if they can no longer perform their duties. It’s important to note that if you’re the agent of a the POA, you cannot transfer it to someone else.
3. A Third Party
There are some circumstances in which a third party may be able to override a power of attorney arrangement. For example, if the agent appointed under a power of attorney is not acting in good faith or is not following the instructions of the principal, then a third party may petition the court to intervene and override the power of attorney.
After receiving a report from a third party, the court will consider whether or not a power of attorney should be revoked before making a decision. If there is proof that the principal lacks the mental capacity to make their own decisions or that the agent is abusing their power, the court may also decide to revoke the power(s).
How A Principal Can Revoke A Power Of Attorney?
Once a power of attorney has been granted, the principal retains the ability to revoke it at any moment.
The written instrument that revokes the power must contain language expressing the principal’s clear intent to cease their POA relationship with the agent. This wording is required in order for the power to be revoked.
However, for this revocation to be effective, two primary conditions must be met:
- It must be in writing
- The document is clear of the principal’s desire to revoke their power of attorney.
The following steps need to be completed by the principal in order to revoke someone’s power of attorney:
- Prepare the revocation: Name, address, date of birth, SSN (if available), and signature should be on the revocation. Date, document, and agents’ names must be included. At least two trustworthy witnesses must sign the revocation document. A state-admitted attorney can notarize or witness the revocation document.
- Notify the agent and other relevant parties: Principals should deliver a copy of the revocation to all existing holders of the revoked instrument. It includes everyone with power under this and any other principal-signed instrument.
- Prepare the new power of attorney: A new agent can represent the principal upon revocation. Principals or guardians can name agents. The replacement document should list all powers of attorney granted to the agent and explain whether the new one will take effect immediately or later.
It is also important to note that a power of attorney can’t be transferred after the principal passes away. The power of attorney ends once the principal passes. At that point, the executor of the will takes over the management of the estate.
How Can A Third-Party Override A Power Of Attorney?
Someone outside the principal can make an attempt to invalidate a power of attorney. For example, if a trustee or a member of the principal’s family has reason to believe that an agent is not looking out for the principal’s best interests. In that case, they have the authority to take action to revoke or contest a power of attorney.
You can do this by doing any of the following:
- Will of principle: If the principal is of sound mind, the third person should talk to the principal about their concerns and explain why they have them. It’s possible that the principal was unaware of what was taking place. If so, simply bringing it up in conversation with the principal might be enough to make them question the agent’s motivations and override the power of attorney.
- Address the agent: The third party may talk with the agent to express their concerns if a medical opinion determines that the principal’s mental ability has decreased. If the agent is willing to step down from their role, an alternate agent may take on the responsibilities, provided that one was designated in advance.
- File a petition with the court: Sometimes, a court is needed. A third party (usually the principal’s family members) must petition the court to remove the principal’s agent from duty. This choice may require legal counsel. The judge will review the petition, the principal’s medical records, and other documents to decide whether to revoke the agent’s authority.
When Can A Power Of Attorney Be Overridden?
A power of attorney may be overridden in certain circumstances, such as if the person who granted a power of attorney revokes it, or if a court invalidates a power of attorney.
What Are The Reasons For Overriding A Power Of Attorney?
The loved ones of the principal may be apprehensive that the agent is not operating in the principal’s best interest in certain circumstances. It’s possible that the agent abused their power of attorney obligations and moved assets without permission or that they ran up a significant amount of debt in their name.
In other situations, individuals may seek to find a replacement for a representative who cannot carry out their responsibilities due to an illness or infirmity. This covers circumstances in which the principal becomes unable to make decisions about their own affairs or in which the agent resigns from their position in the agency.
It is vital to follow the legal procedure for dismissing an agent and replacing them with a new one who can carry out these obligations on behalf of the principal. It is also important to ensure that the replacement agent is qualified to take on these responsibilities. The principal’s intentions will be respected in this manner, and the business of the principal’s estate will be handled responsibly.
How To Override A Power Of Attorney
A power of attorney is a legal instrument that gives someone else the authority to act on your behalf. In most cases, the person you designate as your agent in the power of attorney document will have the same authority as you would have if you were handling the matter yourself. However, there may be times when you need to override your agent’s authority.
1. Revoke A Power Of Attorney
There are a few different ways to override a power of attorney. The most common way is to revoke a power of attorney entirely. This can be done by notifying your agent in writing that you are revoking their authority. You will also need to notify any third parties working with your agent that a power of attorney has been revoked.
2. Appoint A Successor Agent
Another way to override a power of attorney is to give someone else authority to act on your behalf. This is called appointing a successor agent. To do this, you will need to notify your original agent in writing that they are no longer authorized to act on your behalf and provide them with the contact information for your new agent. You will also need to notify any third parties working with your agent that you have appointed a new successor agent.
Conclusion
A power of attorney can be revoked by the principal, overridden by a court order, or terminated upon the death of the person who granted a power of attorney. If you have questions about whether a power of attorney can be overridden in your situation, you should speak to an experienced lawyer and seek legal advice.
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