Legal Insurance
Who Can Override a Power of Attorney, and How Is It Revoked?
Power of attorney (POA) is a legal document that appoints someone to manage financial decisions in the event of physical or mental incapacitation. The person who assigns power of attorney is known as the principal, and the person to whom the principal gives POA is the agent. The principal — that is, the person who assigned POA to someone (an agent) on their behalf — can revoke it.
Power of attorneys are defined by the period they are in effect and the powers that are granted to the agent by the principal. You can create a durable POA (which goes into effect as soon as it’s executed and does not expire), a non-durable POA (which is in effect for a certain period of time), and a springing POA (which only goes into effect if you are incapacitated). POAs can be created to grant your agent legal authority to make financial and medical decisions.1
However, it may not always be that simple. If the principal is incapacitated and the agent is believed to be taking advantage of their position, then it’s up to concerned family and friends to challenge their POA. Let’s take a look at what’s involved in revoking power of attorney.
Legal authority to override a power of attorney
Once a POA is executed, it can be difficult to override a POA if you are not the person who created it. If a family member or friend feels that the agent is not acting according to the principal’s wishes or is not exercising their authority in good faith, it can be a complicated process to have the agent removed.
There are only three people who have the legal authority to override a power of attorney. They are:2
The principal: The person who set up the POA may revoke it at any time
A court-appointed conservator: If the principal is mentally unable to make their own decisions, a court may appoint a conservator to oversee the principal’s medical and financial affairs, including revoking a power of attorney.
A court: Family members or loved ones may take a POA’s agent to court if they feel the agent is abusing their authority.
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Legal grounds for overriding a power of attorney
The principal can revoke a POA for any reason, but there are other reasons for which a POA can be revoke, such as:2
- Misuse of funds: For example, the agent uses the principal’s money for their own benefit
- Failure to provide documentation: The agent refuses to share information about any transactions they take on the principal’s behalf
- Coercive behavior: The agent influences or forces the principal to create a power of attorney giving them the authority to act on their behalf
- Overstepping authority: The agent acts outside the scope of their duties as outlined in the POA
How to revoke power of attorney
There are multiple types of power of attorney, but they can be broadly distributed into two categories. Medical POA grants someone the ability to make crucial medical decisions for the principal if they’re incapacitated. Similarly, financial POA allows an agent to handle the principal’s monetary affairs, such as paying bills or finalizing real estate transactions.
Assigning power of attorney is an important step in end-of-life planning. It’s a way to ensure the principal’s wishes are carried out if they’re physically or mentally unable to take those actions themself. If an agent becomes unsuitable, then family and friends may want to investigate the possibility of revoking POA.
If an agent is unfit for their position, it’s important to understand the details of the principal’s POA documents before taking any action. Determine what type of POA the agent has, the extent of their responsibilities, and if an alternate agent has been named. It can be a difficult process, but an estate planning attorney can help.
Option 1: Speak to the principal
Consulting the principal should always be the first path. Explain any concerns about their chosen agent. If they’re of sound mind, the principal can override power of attorney verbally and select a new agent. It’s also a good idea to have them complete a revocation of POA form so the decision is officially documented.
The principal can revoke the POA any time by completing a notice of revocation, signing it, and having it notarized. They’ll want to notify the agent they had with a signed, written notice.3
If the POA gives authority for real estate transactions, the principal will need to notify the office of the Recorder of Deeds.1 Consult with an estate planning attorney or elder law attorney on what is needed for a revocation of the POA.3
Option 2: Address the agent
If the principal can’t or won’t revoke power of attorney, the next course of action can be to speak to the agent. It’s best to do this through an attorney. That way, there’s no room for misinterpretation.
An attorney will formally request that the agent steps down. If an alternate agent was named in the original POA documents, they’ll step into the agent role. If not, an attorney can assist with the process of petitioning for a conservator or guardian.
If the agent disputes the request that they step down, then it becomes a matter that may have to be settled in court.
Option 3: Take it to court
If the first two options fail, the matter can go to court. There, an attorney can ask the court to override the agent’s power of attorney. It can be a long and challenging process, particularly if the principal named a durable POA. An attorney may also ask the court to appoint a temporary conservator or guardian while the case unfolds.
The judge will require evidence that the agent is neglecting or abusing their duties. There also needs to be proof the principal is not of sound mind and should have their wishes overruled. A good attorney will help by building a case against the agent and bringing in experts to evaluate the principal’s capacity.
Can a spouse override power of attorney?
As a legal designation, power of attorney always takes precedence over the wishes of a spouse. If one has concerns about their partner’s chosen agent, they’ll still need to follow the steps outlined above. Discussing a potential agent with a spouse and other family members beforehand can help avoid such conflicts.
Revoking power of attorney: What happens next?
Once the process of revoking an agent’s POA begins, it needs to be seen through. Whether it ends with a frank discussion or a day in court depends on the individual circumstances. That’s why it’s so important to choose a POA agent with care.
Common questions about overriding power of attorney
As with a spouse, family members cannot override the agent named in a power of attorney.
If the principal is of sound mind, their preference to revoke or change their power of attorney is the only justification needed. Beyond that, circumstances where revoking POA may make sense include:
- Coercion of the principal by the agent to do something that isn’t in their best interest
- Misuse of the principal’s money by the agent
- The agent overstepping the authority given to them in the POA documents4
Your power of attorney should have information including the type of POA it is, the date of creation, the start and end date of the POA (if applicable), your name, your agent’s name, what your agent has the authority to do, and what your wishes are.1
Once your POA is drafted, whether you need one or two witnesses and a notary depends on your state’s requirements. So check with your state to be sure your POA is properly executed.1
Generally speaking, a power of attorney doesn’t give an agent the power to make decisions about the principal’s estate after they’ve passed away.1