A power of attorney (POA) is a legal contract that gives a person (agent) the ability to act on behalf of someone (principal) and make decisions for them.
The principal who is still of sound mind can always override a power of attorney. In some other circumstances, a POA can be overridden by the concerned friends and family of the principal.
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Understanding the Power of Attorney
A power of attorney is a legal document that grants a person legal authority to represent another in matters such as signing legal documents, making financial decisions, and other types of transactions. The appointed person is referred to as the agent, while the person who grants this authority is called the principal.
An individual or group can grant a power of attorney to another individual, organization, or institution. When someone has lost the ability to make decisions on their behalf due to age, illness, or absence, such as in the case of overseas military duties, they may grant power of attorney rights to someone.
This document can be classified as a general or enduring (durable) power of attorney depending on if it covers only a specific action, such as selling one's house or filing taxes, or if it continues until revoked by either party or until the principal dies.
Power of attorney documents play an important role in estate planning for seniors who are aging and want to protect themselves from undue pressure from family members before they pass away or avoid conflict when they finally pass on.
What Are the Reasons for Overriding a Power of Attorney?
In some cases, the principal's loved ones can be concerned that the agent isn't acting in the principal's best interest. Abusing their power of attorney responsibilities, the agent might have run up a large debt in their name or transferred assets without permission.
In other cases, people may want to replace an agent who has become unable to carry out his or her duties due to illness or incapacity. This includes situations where the principal becomes unable to make decisions about their affairs or when the agent resigns from their position.
It is important to follow the formal procedure for removing an agent and replacing them with a new one who can carry out these responsibilities on behalf of the principal. This way, the principal's wishes will be protected, and their estate affairs dealt with responsibly.
Who Has the Right to Challenge a Power of Attorney?
So who can override a power of attorney? If the principal is of sound mind and body, they may choose to revoke all powers of attorney conferred to an agent. They can revoke a power of attorney at any time while they are still capable of making decisions themselves.
Once the principal has become incapacitated or unable to make knowledgeable choices on their behalf, steps must be taken to either remove an existing power of attorney and appoint one that can carry out these duties or transfer power of attorney to someone else.
Typically, there are three ways that an existing power of attorney can be revoked:
- The principal may revoke the POA by creating and signing a revocation form;
- A court-appointed guardian may request the termination of a particular agent's authority; and
- An interested party (usually another family member or close friend) may petition the court to terminate the power of attorney.
Once a third party makes a report to the court, the court will determine whether a power of attorney should be terminated. The court may also decide to terminate the powers if there is evidence that the principal lacks mental capacity or is being abused by their agent(s).
How the Principal Can Take Away the Power of Attorney From Someone
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.