Once the principal has given a power of attorney, they can revoke it at any time.
For this revocation to be valid, however, two main conditions apply:
- The revocation must be in writing.
- It must clearly express the principal's intent to revoke their power of attorney.
In other words, the written document revoking the power needs to contain language that expresses the principal's clear intent to end their POA relationship with the agent(s). (California Probate Code Section 4150-4155)
Principals need to understand that they can make an immediate revocation if necessary. To take the POA away from someone, the principal should follow the next steps:
Step 1. Prepare the revocation
The revocation should list the principal's name and address, date of birth, social security number (if available), and signature. It must state the date when the POA was given, identify the document giving it to them, and include the agents' names.
The revocation document must be signed in the presence of at least two credible witnesses who will also sign it. The revocation document can be notarized or witnessed by an attorney admitted to practice law before any court in this state.
Step 2. Notify the agent and other relevant parties
Principals should directly deliver a copy of the revocation to all persons or institutions currently holding power under the revoked instrument. This includes every person with authority under this document and any other document previously executed by the principal.
In this respect, financial institutions, healthcare providers, and other parties the agent engages on behalf of the principal must be notified of the revocation. By doing this, principals can ensure that their wishes are met, and the agent cannot continue to use the revoked power, especially where there was a financial power of attorney.
Step 3. Prepare the new power of attorney
If the POA is revoked, a new agent can be appointed to represent the principal. The principal or their guardian can name their desired agent. The replacement document should include all powers of attorney granted to the agent and state whether this new power of attorney will take effect immediately after revocation or in the future.
How a Third-Party Can Override a Power of Attorney
Someone other than the principal can also try to override a power of attorney. A trustee or family member of the principal can take steps to revoke or challenge a power of attorney when they feel that the agent is not acting in the principal's best interest. This can be carried out in three main stages:
Step 1. Speak to the principal
If the principal is of sound mind, the third party can discuss with them why they are concerned. The principal may not have realized what was happening, and talking to them might be enough to cause them to question the agent's intentions.
Step 2. Address the agent
If a medical opinion determines that the principal's mental capacity is diminished, the third party can have a conversation with the agent to discuss their concerns. If the agent agrees to resign from the position, the responsibilities can be undertaken by an alternate agent if such had been indicated.
Step 3. File a petition with the court
Sometimes, it will be necessary to take the battle to court. A third party will have to file a petition with the court explaining their concerns and why they believe the principal's agent should be relieved of their duties (California Probate Code Section 4541). It might be wise to seek legal advice if you opt for this option.
The ruling judge will examine the petition, the principal's medical records, and any other documentation that can provide insight into whether or not to revoke the agent's authority.
At the end of the day, a power of attorney is a contract. And, there will be times when this contract needs to be voided for the principal to receive quality care and treatment.