Who Can Override a Power of Attorney

A Power of Attorney is a document in which the creator (the “Principal”) names someone they trust (called an “Attorney-in-Fact”) who can act on their behalf when they are not able. There are several different types of Power of Attorney (often called a “POA”) and many people execute more than one type. The most common types are medical and financial.

A medical POA gives your trusted individual (“Attorney-in-Fact”) the right and authority to make medical decisions for you when you cannot speak for yourself, or your physical health or mental condition is so compromised that you cannot make any decisions, or decisions you make on your own may not be in your best interests. To make sure you are cared for according to your wishes, you carefully choose someone to step in for you  – someone who knows you well and understands how you would want to proceed with medical treatment and care. Often the Power of Attorney document itself spells out your preferences regarding certain types of decisions.

A financial POA gives your Attorney-in-Fact the power to make financial decisions on your behalf. They will be able to access your bank accounts, pay your bills for you, and direct the maintenance of any investment accounts you hold. A financial Power of Attorney often gives the person you name your Attorney-in-Fact the authorization to vote in your place in any corporate holdings you have. The Attorney-in-Fact’s power and authority can be far-reaching.

If you are concerned about how a family member or a close friend’s Attorney-in-Fact is handling the decisions being made on their behalf, there may be something you can do. 

So, why would you want to override or revoke a Power of Attorney?

There are several good reasons to make a change to a Power of Attorney:

• A change in the strength of the relationship with the chosen Attorney-in-Fact
• A change in their capabilities, or their own incapacity,
• A change in their or the Principal’s location,
• Divorce (Principal or Attorney-in-Fact),
• Marriage (Principal or Attorney-in-Fact),
• Death of the Attorney-in-Fact, or
• A belief that they no longer have the best interests of the Principal at heart.

Relationships change, life situations, opinions, and attitudes can change. Any of these can necessitate a change in one’s Power of Attorney. A Power of Attorney is designed to protect the Principal and should never be maintained if it is no longer beneficial just to preserve the feelings of the originally named Attorney-in-Fact. 

To make a change in these cases, the person who originated the Power of Attorney can choose to revoke the POA at any time. They can do so by notifying the named individual and anyone else who has been given a copy of the document, by destroying the document itself, (and any copies) or by executing a new Power of Attorney which specifies that it replaces any Power of Attorney previously executed. 

But What if the Person Wanting the Change is Not the Principal?

Chances are you didn’t search out this article to find out how to revoke a Power of Attorney you created. Chances are you are concerned about an existing Power of Attorney created by family member or friend that you love and care about. Perhaps you feel that the current Attorney-in-Fact is:

• Not acting in the best interests of the person they are supposed to be serving,
• Not making the decisions the Principal would have chosen for themselves,
• Taking advantage of their authority and power,
• Stealing assets they are charged to protect, or
• Abusing the person you love.

You have decided that it is necessary to step in and make a change to best protect your loved one, but you’re unsure how to proceed.

While this is not a simple procedure, it can be done.

Your first action should be to document your concerns and any evidence you are able to gather that supports your reason for suggesting a change in the POA. You cannot change someone’s chosen attorney-in-fact based on your dislike for the person chosen, the idea that someone else would be better, or for any other reason that is not directly related to the well-being of the Principal. If you feel that poor financial or medical decisions are being made, excessive amounts of money are being spent, funds are being inappropriately diverted, or any other concerns of this nature, document the issues and have your evidence ready for the next steps you need to take.

First, talk to the Principal. Explain to them why you are concerned. They may not realize what is going on, and simply expressing your concerns may be enough to cause them to act. They may be grateful for your observations and concerns. They may not. 

If the Principal does not, or cannot act, your second step should be to talk directly to the person named as attorney-in-fact. Discuss what you are concerned about and ask if they might be willing to resign. If they are willing to step down, a successor attorney-in-fact can step in and take over the responsibilities. 

Remember that everyone has the right to make their own decisions about who can act for them, and unless you have strong evidence that they are, or could be harmed, think carefully about the next step.

If you have talked with the Principal and the Attorney-in-Fact and neither will act, you will need to file a petition with the Court asking them to remove and replace the Attorney-in-Fact. You may want to seriously consider getting the assistance of a qualified elder care attorney at this point.

You will present your evidence to the judge and explain your concerns and reasons you feel the Attorney-in-Fact’s authority should be revoked. The judge will consider your evidence along with the Principal’s medical and/or financial records, testimony from medical and other professionals, and other evidence, testimony, or documents available, and will make a decision on the merits of the case as presented. 

If the Court agrees with you, they will move to replace the Attorney-in-Fact. If there is a successor named in the original POA, this is the person who will step in at this time. If no successor was named, or the named successor will not, or cannot, serve, the Court will choose the successor on behalf of the Principal. Understand that the new Attorney-in-Fact may not be you. The Court will name the person or entity they feel will best protect the interests of the Principal. They are under no obligation to name the person who brought the action.

It is very difficult to stand by and watch someone you care for being taken advantage or abused in some way. There are ways to step in and protect them, but you need to proceed carefully. A Power of Attorney is a contract between the Principal and the named Attorney-in-Fact that concerns the most personal issues of the Principal’s life. A breach of the trust granted in this contract should not be taken lightly. It is also true that these situations can cause heightened emotions and misunderstandings. Stepping into such a personal space should be undertaken carefully. 

If you have questions about protecting your loved one from misplaced trust in a named Power of Attorney, or to set up or change your own Power of Attorney, schedule a phone or video consultation with Siedentopf Law to talk about your concerns.