who can override a power of attorney

As an attorney, I often face the question of who can cancel a power of attorney (POA). This is a document allowing someone (the agent) to act for another (the principal). It's not always just the principal who can cancel it. Sometimes, others like family members or the court can also do so¹²³.

Key Takeaways

• The person who made the power of attorney has the final say in most cases, even if they're not thinking clearly anymore.
• If close family or a court-appointed guardian has concerns, they might be able to fight the POA legally.
• A POA can also be taken back through a written document, with witnesses, or by going to court.
• Getting legal advice is wise to revoke a power of attorney correctly.
• When making or canceling a POA, it's vital to document and communicate clearly.

Understanding Power of Attorney

A power of attorney is a legal paper that lets someone else make choices for you. This person is called your agent or attorney-in-fact. It's often used in estate planning for a wide range of decisions like financial, legal, and medical matters⁴. Picking the right power of attorney and making sure it's done right is key. It helps keep the person whose choices are being made safe and ensures everything is done the way they want.

What is a Power of Attorney?

It's a legal tool that lets someone choose another person to act for them⁴. This can mean signing papers, handling money, or making health choices, based on what's agreed⁴. The agent has to look out for what the person wants and act in their best interests.

Types of Power of Attorney

There are many different kinds of this legal document, each with its special uses:

• Durable Power of Attorney (DPOA): It stays valid even if the person who signed it can't make decisions themselves. This means the agent keeps making choices⁴⁵.
• Springing Power of Attorney: It starts when a specific event happens, like if the person can't make choices anymore⁵.
• Health Care Power of Attorney (HCPOA): Someone picks an agent to decide on medical stuff if they can't⁴⁵.
• Financial Power of Attorney: Lets the agent handle money matters, like paying taxes or looking after savings, for the person who signed the document⁴⁵.
• General Power of Attorney: Gives broad powers to the agent. They can do a lot of different tasks for the person, such as manage assets or sell property⁴.
• Limited Power of Attorney: Only allows the agent to act for specific things as described in the agreement⁴.

Signing a power of attorney often needs a notary, and some places require extra steps, like filing with a court, to make it official⁴. It's smart to get legal advice when you're making one. This helps you follow the law and pick someone as your agent who will really do what you want⁴⁵⁶.

"Choosing a trustworthy and capable agent is crucial to ensuring that the principal's wishes are carried out effectively."

 

Reasons to Override a Power of Attorney

An individual might want to change a power of attorney (POA) for serious reasons. One big worry is when the agent, or the person with POA, doesn't act for the principal's good. This could mean they're not making choices that help the principal the most or they're using their power wrongly. There's also a problem if the person giving the POA wasn't able to think clearly when they did it⁷.

If something like this happens, the principal's family or a guardian might try to cancel the POA. They could pick a new agent who will look after the principal's interests better⁷. This choice is usually made after thinking hard about what the principal and the agent have done. It's to make sure the principal's rights and what they want are followed⁷.

Also, changes in the principal's life can make it necessary to pick a new agent. This could be because of new relationships, accidents, or if the first agent can't help anymore⁸. Cancelling a POA can be as simple as writing or tearing up the old one. Or, you could sign a new POA that cancels the old one clearly⁸.

Sometimes, an agent might feel they can't do the job anymore and ask to stop being the agent⁸. This shows how important it is to pick the right person for the POA. You should think carefully about who you choose to be your POA agent⁸.

The most important thing is that the principal can always change or cancel a POA. This is key to making sure their needs come first, even if that means changing the first POA. Understanding why a POA might need to be changed helps people make good choices to protect themselves and their family⁷.

Type of Power of Attorney	Description
General	Allows the agent to handle a wide range of financial and legal matters, such as bank accounts, property sales, bill payments, and tax filing9.
Durable	Remains effective even if the principal becomes incapacitated9.
Special (Limited)	Grants the agent limited powers for specific purposes9.
Springing Durable	Takes effect only upon the occurrence of a specific event or medical condition9.

It's key for a POA agent to always act in the principal's best interest. If the principal is in good mental shape, the agent's power could be taken away if they don't act right⁹. And if there's any argument about the POA, a legal expert might need to help. They should know about laws dealing with older people and people with disabilities⁹.

https://youtube.com/watch?v=ci4m-Tyxq78

In the end, being able to change a POA is really important. It helps make sure the principal's needs are met. By knowing why and how a POA can be changed, people can make sure their family and their own wants are looked after well.

The Principal's Right to Revoke

As the person giving a power of attorney, you can revoke power of attorney any time you want as long as you're thinking clearly¹⁰. This lets you end the power you gave to your agent to make decisions for you. You may want to do this if they haven't done their job, behaved badly, or if how you feel about them has changed¹¹.

Revoking a Power of Attorney

To cancel a power of attorney, you must write a clear statement that shows you want the agent's power to stop. You can get rid of the POA paper by ripping it, cutting it, or burning it¹¹. Or else, you can write a new paper to take back your power, preferably with a notary's help, to make it officially end¹¹.

Notifying Relevant Parties

After taking back the power of attorney, make sure you tell the people and places that had to listen to your agent. This means letting banks, doctors, and anyone else who listened to your agent that they can't anymore¹¹. By sending them a letter about the change, you make sure your agent stops acting for you and keeps your POA safe from being misused¹⁰.

Sometimes the courts have to step in to protect you, like when your agent is doing things wrong or if you're not able to think clearly¹⁰. They can end the POA if the agent goes against what you want or if they don't look out for your best interests¹⁰. And if someone doubts you can think clearly, a legal check might be needed to make sure the stop-order is right and that your rights are safe¹¹.

Stopping a power of attorney can be tricky. It's usually a good idea to get help from a lawyer who knows the rules¹¹. They can make a valid paper to end the power, guide you on telling everyone who needs to know, and make sure you're okay during the whole thing¹¹¹⁰¹².

Appointing a New Power of Attorney

If a power of attorney is canceled or the first agent can't do the job, a new agent can be chosen¹³. This means making a new power of attorney document. It says what powers the new agent has. It also tells if the POA starts now or later¹⁴. Having the right papers and plans is key. It makes sure the principal's wishes are followed¹³.

Think about what the principal needs when picking a new power of attorney¹⁴. The new agent must be someone the principal believes in. They should look out for the principal's interests and make good choices for them¹⁵. You might pick more than one agent to work together or take over one after the other. This keeps the plan flexible and ensures things keep running if the first agent can't help anymore¹⁴.

Setting up a new power of attorney needs a few steps. You have to sign with witnesses and a notary¹³. The new agent must get a copy and know their job and duties¹⁴. It's also wise to check and update the POA as the principal's life changes. This makes sure the plan always fits their situation¹⁵.

Choosing a new power of attorney isn't easy, but it's very important. It makes sure the principal's choices are honored and their rights are looked after¹³. Talking with experts and thinking through all the details helps. This way, the power of attorney can be just what's needed. And it gives the right protection¹⁵.

Challenging a Power of Attorney as a Third Party

Sometimes, a friend or family may want to challenge a power of attorney (POA) if they think the agent is not helping the main person¹⁶. It's important to follow specific steps to make sure the main person is safe and their rights are protected.

Speaking with the Principal

The first step is talking to the main person, if they can think clearly¹⁷. This helps understand what the main person wants and if they can change the POA themselves. If they can't, the next steps can be taken.

Addressing the Attorney

Next, the challenge goes to the agent if the main person can't change the POA¹⁸. This might mean asking for financial papers or health reports to check if they're doing what's best. If they don't help, legal steps might be needed.

Filing a Court Petition

As a final step, a court petition can be filed to cancel the POA or limit the agent's power¹⁸. This includes showing evidence like misuse of power or the main person not being able to decide¹⁶. The court will make a final decision after looking at the case.

Challenging a POA is tough but crucial if the main person's safety or rights are at risk¹⁷. With the right steps and evidence, friends or family can ensure the main person's needs come first legally.

The Attorney's Role and Responsibilities

The attorney-in-fact has a big job when chosen under a power of attorney. They must always act in the best interest of the person who chose them, called the principal¹⁹. This means taking care of the principal's money, making health choices, and doing other tasks from the power of attorney¹⁹. It's critical they work carefully to meet their legal duties²⁰.

For this role, attorneys-in-fact need a lot of education. They require a Bachelor's and a law degree from a top school²⁰

. They also must pass the bar exam in the state where they'll practice²⁰. Plus, they should always follow all laws closely²⁰.

Attorneys-in-fact could do their job alone or with other lawyers, depending on what's needed for the principal's situation²⁰. Knowing a lot about a specific law area can be helpful. This is because the work might change a lot, based on what the principal needs²⁰.

Let's talk about pay. A property attorney can take up to 2.5% of what they manage each month²¹. Personal attorneys, on the other hand, can charge up to $15 per hour²¹. They have to keep track of their charges. And they must show how they spent the principal's money every year. Also, they need to share a final report within six months after their role ends²¹.

"The attorney-in-fact must act with the utmost care and diligence to fulfill their legal obligations."

 

So, the attorney-in-fact always puts the principal first. They handle the principal's money and health choices, following all rules to keep everything fair. Their work and pay are closely watched to always protect the principal's interests and assets.

When Can a Court Override a Power of Attorney?

If the person who gives power of attorney gets very sick or if someone is using it the wrong way, a court might step in. This often happens when a family member or a friend asks the court to stop the current agent and pick someone new. This is to protect the person who originally gave the power of attorney²².

There are a few reasons why a power of attorney might be disputed. For example, if the person who started it couldn't fully understand what they were signing, or if the agent is not doing what they should be doing. The court might also look into it if something has changed and the current situation calls for a different action²³. In some places like California, the person who gave the power can take it back as long as they are healthy in mind²². They can do this by going to court, signing certain papers, or asking a guardian for help²².

It's up to the person to pick someone they trust as their power of attorney. This person may have to make big decisions if the first person gets too sick. Sometimes, the power of attorney needs to be stopped if the agent is not doing what's best for the person who chose them²². In these cases, a clear statement needs to be written, usually signed by the person who gave the power and two others. Then, everyone who needs to know must be told. A new document with a new agent might be needed²².

Other important people, like family, can also get a power of attorney changed or canceled. They can do this by talking to the person who gave the power, discussing issues with the current agent, and asking a court to step in if things are really bad²². California law says that an agent must keep good records and not trick or force someone into giving them power²⁴. If an agent is not doing their job right, like not taking care of the person's money or needs, then their power can be taken away²⁴.

In California, signing a power of attorney is a serious step. There must be a principal and two witnesses present. A financial power of attorney form must also be signed by someone like a notary or a lawyer²⁴. If the document isn't exactly right, it can be questioned. This might happen if it's missing key parts or if it wasn't signed correctly²⁴. If there's good reason, the court can throw out a power of attorney for the person's own good²⁴.

A durable power of attorney keeps working even if the person is unable to act because of sickness. But, there are rare cases where the power can't be taken back. When the person dies, the power ends, and someone else, like the estate manager, takes over²³. If family believes the power is being misused, they can try to stop that or limit what the agent can do. The person who gave the power can also change their mind at any time, as long as they're able to make such decisions²³.

"The aggressive attorneys at Albertson & Davidson have the necessary resources and experience to challenge and invalidate powers of attorney agreements in California. Albertson & Davidson's litigation team has extensive experience in contesting powers of attorney and is prepared to take cases to trial if required."

 

Best Practices for Power of Attorney

Setting up a power of attorney correctly is key. This ensures the document is valid and the principal's wishes are safe. It's essential to know what your state requires for a power of attorney. Think about putting an end date or limits on the POA to stop misuse²⁵.

Being clear with the agent's instructions is crucial. This lessens the chance of them not following your real wishes. Getting advice from a seasoned estate planning attorney is wise. They can help with making sure the power of attorney is done right. This lowers the risk of any future problems²⁵.

• Think about setting an end date or some limits to avoid misuse²⁵.
• Give clear, specific instructions to your agent to prevent misunderstandings²⁶.
• Talking to a skilled estate planning attorney can help confirm the power of attorney's correct handling²⁵.

Recommendation	Rationale
Choose a trusted professional as your agent	Lawyers and accountants know how to handle complex money and legal matters for you26.
Name a successor agent	This helps when your main agent can't do their job anymore. There's a plan B with another agent ready to step in26.
Consider a durable power of attorney	A durable POA means your agent can keep helping you even if you're not able to make decisions. It offers more choice-making freedom26.

By sticking to these best practices, you make your power of attorney strong and protective. It cuts the chance of misuse or problems later on. Spending the time to do this right brings a lot of peace. It protects what you want if you can't look after things yourself.

"Being careful and planning well with your power of attorney matters a lot. It’s a key part of a full estate plan."

 

Conclusion

As an attorney, I know how key it is to get power of attorney right and grasp the legal rights it offers²⁷. Many lawyers like to add a clear ending to their reports for easy use. Still, it's vital not to repeat the legal points, bring in new info, or show doubt about legal results²⁷.

Having power of attorney is great for your estate plans. It protects what's yours. But, it can sometimes be contested or not fully followed²⁸. No matter if you're the main person, the chosen agent, or someone else, knowing what to do if things change is crucial²⁸.

Teaming up with a skilled lawyer helps ensure your power of attorney fits your plans and keeps your rights safe²⁹. Rulings from big cases, like Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, have really influenced how we view legal rules and the difference between ideas and facts²⁹. Following these trusted methods can guide you through the tough parts of power of attorney. This way, you can make choices that look out for what matters to you.

FAQ

Who has the authority to override a power of attorney?

The person who made the power of attorney can change it, even if they're not fully aware. Others, like close family or a court-appointed guardian, might also be able to stop it.

What is a power of attorney?

A power of attorney lets one person act for another in legal or financial matters. The person giving the power is the principal. The one acting is the agent. This includes making decisions or signing papers for the principal.

What are the different types of power of attorney?

There are several kinds. These include general, durable, springing, and medical power of attorney. Each is used for different situations.

Why might someone seek to override a power of attorney?

There are a few reasons. Like, if the agent isn't looking out for the principal. Or, if the agent is using their powers for the wrong reasons. It might also happen if the principal was not fully able to agree to the power of attorney.

How can the principal revoke a power of attorney?

If the principal is still clear-minded, they can cancel the power of attorney. They just need to write a note saying they want to end it with the agent.

What happens if a power of attorney is revoked?

If the power of attorney is canceled, the principal or their guardian can choose a new agent. They have to make a new agreement that spells out the new agent's powers.

How can a third party challenge an existing power of attorney?

First, they should speak to the principal, if they can. Then, if needed, the third party can talk to the agent. As a last step, they can ask the court to review or cancel the power of attorney.

What are the attorney's responsibilities as an agent under a power of attorney?

The attorney must put the principal's interests first. They are expected to make choices that the principal would agree with.

When can a court override a power of attorney?

If the principal can't make decisions anymore, or if the agent is doing something wrong, the court might step in.

What are some best practices for setting up a power of attorney?

It's crucial to set up a power of attorney carefully. Know the laws in your area. Think about how long the power will last or if it will have limits. Make sure the agent knows exactly what they can and cannot do for the principal.

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