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Who Can Override a Power of Attorney (POA)?

Estate Planning

A power of attorney (POA) is a legal agreement that gives a person (agent) the ability to act on behalf of another person (principal). Common questions asked about POAs are “Who can override a power of attorney?” and “Under what circumstances a person can override them?”.

Power of Attorneys can be overridden. However, the “who” and “how” depends on whether the principal is of sound mind.

First and foremost, 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?

The act of overriding a power of attorney is called revocation. Revocation involves creating or modifying an attorney document to clearly express the principal’s intention to revoke a specific POA. Every state’s laws specify how revocation can occur, but typically, it is required to be in writing and must clearly express the principal’s intention.

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, such as your incapacity
  • Sending a written notice of the revocation to the agent and any monitor, secondary agent, successor agent, 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 Power of Attorney Through the Court

A second way a POA can be overridden is through court intervention. For example, if 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 are concerned about this situation, they can seek to have you removed as well. 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.

In cases where an agent refuses to step down, leading to legal action to challenge the agent’s authority, the concerned parties may need to make a formal request to the agent, seek legal advice, and ultimately file a petition with the court. This legal action is necessary to protect the principal’s interests and ensure the power of attorney is exercised in their best interest, especially when there is evidence of abuse or negligence by the current agent.

A third option is when a concerned party seeks guardianship or conservatorship of the principal through the local court system. If a guardian or conservator is subsequently appointed, 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. If an agent refuses to fulfill their duties, consulting an experienced lawyer for advice on how to proceed is crucial.

Seek Out a Local Power of Attorney Professional

For a legal consultation, call 856 770 2744

If you have questions about revoking a power of attorney or creating a new power of attorney that overrides a prior one, it is best to speak with a professional at Bratton Law Group. Each state’s laws are quite specific regarding the power of attorney process. An estate planning attorney at Bratton Law Group can help you understand how to comply with applicable requirements. An estate planning attorney can also assist with creating legal documents such as durable power of attorney and springing power of attorney. Furthermore, they can ensure that an agent makes financial decisions that align with the principal’s wishes, with the involvement of a family member in the process if necessary.

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