Who Can Override a Power of Attorney (POA)?

Takeaways

• A power of attorney (POA) allows a person (agent) to act on behalf of another person (principal).

• The principal can override a POA at any time if they are of sound mind by revoking it in writing.

• If the principal is not of sound mind, a court can override a POA through guardianship or conservatorship.

What Is a Power of Attorney?

A power of attorney (POA) is a type of legal document important in the estate planning process. It gives a person (agent) the ability to act on behalf of another person (principal). The agent has the obligation to 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. This gives an agent authority to act on your medical decisions if you become unable to do so. A financial POA may, meanwhile, name an agent to carry out financial transactions on your behalf.

A common question asked about POAs is under what circumstances a person can override them.

What Is Revocation of Power of Attorney?

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 if 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. If you are the principal, you can override a POA if you have the mental capacity to understand what you are doing.

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 may be able to revoke a power of attorney in different ways, including the following:

• 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 monitors, alternate agents, and any other relevant parties

Note that a POA can also naturally terminate upon the conclusion of a specific event. For example, this may occur in a situation where a principal executed a power of attorney solely for the purpose of closing a particular real estate transaction.

How Do You Take Power of Attorney Away From Someone?

Overriding a POA is also possible 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 document.

If your family members or other loved ones had concerns about your agent, they would have to file a formal request with the applicable court to remove the agent and replace them. This request is made pursuant to the applicable state’s law governing powers of attorney.

Another way to override a POA is seeking guardianship of the principal through the local court system. If the court subsequently appoints a guardian or conservator, that person 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 someone to serve as your agent under a POA, discuss the responsibilities of the role with the person you have in mind. If you do this before appointing them, this will be your best bet for avoiding such a situation.

Yet even if your agent had agreed to act in this role, they can still resign after their appointment. This is one reason it may be a good idea to consider naming a successor agent.

Seek the Help of a Local Estate Planning Attorney

If you are considering revoking a power of attorney, it is best to speak with an estate planning professional. They also can assist in creating a new POA that overrides a prior one.

Each state’s laws are quite specific regarding the power of attorney process. So, work with a qualified estate planning attorney who can ensure you are complying with applicable requirements relevant to your state. Find an estate planning attorney near you today for legal advice.

Further Reading

For additional information, you also may consider checking out 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?