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Who Can Override a Power of Attorney (POA)?
- By Natasha Meruelo
- February 21st, 2024
A power of attorney (POA) is a type of legal document important in estate planning. It gives a person (agent) the ability to act on behalf of another person (principal). The agent must act in the principal's best interest.
Numerous types of powers of attorney are appropriate for different situations. For example, you may appoint a medical power of attorney to decide on your medical treatments if you become unable to communicate your wishes. A financial POA may name an agent to carry out financial decisions on your behalf. A common question asked about POAs is under what circumstances a person can override them.
Overriding a power of attorney is possible. However, the “who” and “how” depends on whether the principal is of sound mind.
First, the principal can override a power of attorney at any time as long as they are of sound mind. The term “sound mind” refers to the state of mind and memory a person has at the time in question. So, as principal, you could override a POA if you have sufficient mental capacity to understand what you are doing.
What Is Revocation of Power of Attorney?
The term for the act of overriding a POA is revocation. Every state’s laws specify how revocation can occur. Typically, it must be in writing and clearly express the principal’s intention to revoke a specific POA.
As the principal, you can revoke a power of attorney in many different ways, such as:
- Executing a new power of attorney, which states that you are revoking a prior POA
- Putting provisions in a POA that state it will terminate or become ineffective under certain circumstances (e.g., if you become unable to manage your own affairs)
- Sending a written notice of the revocation to the agent and any monitor, alternate agents, and any other relevant parties
- A POA can also naturally terminate upon the conclusion of a specific event, such as in a situation where the principal had entered into a POA solely to close a particular real estate transaction
Overriding a POA Through the Court
A second way to override a POA is through court intervention. For example, imagine that you, as an agent, are no longer of sound mind. A court can remove you for acting improperly or acting in a manner that abuses your responsibilities as set forth in the POA.
If family members or friends have concerns about this situation, they would have to file a formal request with the applicable court to remove an agent and replace them with a new one. This request is made pursuant to the applicable state’s law governing powers of attorney.
A third option is seeking guardianship of the principal through the local court system. If the court subsequently appoints a guardian or conservator, they can then request the termination of a particular agent’s authority.
Can Your Agent Refuse to Fulfill Their Duties?
An agent can in fact decline to fulfill their duties. When choosing an agent under a power of attorney, it is best to have discussed the responsibilities with of the role before appointing them so that you can do your best to avoid such a situation.
Even if your agent had agreed to act in this role, they can still resign after they have been appointed. This is one reason it may be a good idea to consider naming a successor agent.
Seek Out a Local Estate Planning Professional
If you have questions about revoking a power of attorney or creating a new POA that overrides a prior one, it is best to speak with a professional in your area. Each state’s laws are quite specific regarding the power of attorney process. A qualified estate planning attorney can help you understand how to comply with applicable requirements relevant in your state.
For additional information, you also may refer to the following related articles:
- What Is a POA and Who Should Hold Onto the Power of Attorney Document?
- How to Handle Sibling Disputes Over a Power of Attorney
- Questions and Answers About Being an Agent Under a Power of Attorney
- Is Using an Online Power of Attorney Form a Good Idea?
Created date: 01/10/2023