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As we progress in life, we might deem it necessary to get a Power of Attorney (POA).
If you already have one, that’s good. But you may want to take things a little further to learn who can override a Power of Attorney for several reasons.
For starters, a power of attorney legally puts someone in charge of your life’s decisions - especially on medical, legal, and financial matters. Sadly, many circumstances might lead you to ditch whoever held the role.
This article explores all you should know. Let’s get into it.
What is a POA? How Does It Work?
Get this; power of attorney is not a person. It is a legal document or authorization that grants a person - called an attorney-in-fact or agent, the right to make decisions concerning the life of an individual - known as the principal.
In essence, if a principal has many properties and assets, is financially buoyant, but feels incapable of making smart decisions about their wealth, they could appoint somebody to do it on their behalf.
Once they trust the person's judgment, they can legally make the person the “chief decision maker” of their life via a power of attorney.
An agent who has been granted power of attorney should determine the extent of authority they have to preside over the principal's life.
Is it broad or limited? If it’s broad, that means the principal requires you as an agent to preside over all their affairs, from medical, financial, and more, without consulting them.
However, the limited authority would restrict the agent's jurisdiction to certain areas of the principal’s life - like finances only or their properties only. And even then, the principal can still put clauses on the decisions of a power of attorney in select spheres.
Usually, both the agent and the principal are required to sign the legal document that initiates a power of attorney. There has to be a third-party present at the signing as a witness.
Now, before you select anyone as your agent or attorney-in-fact, you have to consider a couple of factors.
For starters, can that person be trusted to execute and protect your interest in all your affairs? If yes, do you really want to give that person broad authority over your affairs?
At the end of the day, the ball is in your court. Generally, power of attorney expires when the principal dies.
Power of Attorney - Types
There are different types of power of attorney. If you’re considering giving your attorney-in-fact limited authority over your life, you should consider the various power of attorney that exists. That way, you’ll easily choose the aspect of your life you want them to control.
1. Springing Power of Attorney
This power of attorney document is conditional. Upon signing the document that affects the POA, the agent can only step in when certain circumstances happen.
For instance, if the principal is an avid traveler, he could sign a springing power of attorney that puts the agent in charge of his affairs when he’s out of his home country.
In certain instances, the agent's power springs into effect when the principal is involved in an accident or incapacitated.
2. Durable and Non-durable Power of Attorney
With a durable power of attorney, your agent holds the ability to oversee and preside over your affairs both when you’re in good health and when you’re not.
Usually, once you’re declared “incapacitated,” your agent’s ability to preside over your affairs automatically ends. But that’s not the case with a durable power of attorney.
A durable power of attorney is effective from the day the document is signed and continues when the principal falls ill or is mentally incapacitated.
The only time the durable power of attorney won’t be effective is when the principal specifically adds a phrase that conveys the thought.
On the flip side, non-durable power of attorney is not all-encompassing. Instead, it is restricted to a set period and for certain contexts.
For example, the principal could grant his agent the power to preside for him over a financial transaction. Once the transaction is over, the power ends.
3. General Power of Attorney
As earlier stated, the general power of attorney (POA) comes in the form of a legal document that grants the agent the freedom to make decisions on behalf of the principal in various contexts.
For instance, they could be granted the right to sign checks on behalf of the principal or sell properties.
4. Medical Power of Attorney
This legal document centers on the medical aspect of your life. It grants the healthcare agent you’ve selected the liberty to make medical-related decisions for you.
More often, this arises when you cannot make a medical decision for yourself.
Some key medical decisions your healthcare agent can make on your behalf include surgeries, organ donation, and the doctor who treats you.
5. Financial Power of Attorney
This legal document is a limited type of power of attorney that restricts your agent to only financial affairs.
Here, your agent can decide what to do with your finances, property, and other financial matters. They can also pay your bills for you.
Types of Power of Attorney Compared
Are you still confused about the different types of power of attorney? Check out this comparison table for clarity.
|Springing Power of Attorney||
|Durable Power of Attorney||
|Non-Durable Power of Attorney||
|General Power of Attorney||
|Medical Power of Attorney||
|Financial Power of Attorney||
Power of Attorney - Limitations
While some power of attorney might seem like the agent has no limitation, that’s not true - the principal limits agents on several fronts.
The most basic limitation is that the agent is not allowed to use the principal’s money or property to fulfill their desire.
They can’t live or sleep on the principal’s private property or withdraw from the principal’s bank account to cater to their personal needs - except the attorney has instructed them.
Also, they can only act on the will of the principal. In essence, they can’t take decisions that contradict the principal's will. They are bound to act in the principal’s interest.
Once the principal dies, a power of attorney expires. Hence, they can’t make any decision on behalf of the dead principal. They can, however, execute the principal's will if they’ve been instructed to do it by the principal before death.
More importantly, agents with power of attorney do not have the right to transfer their power to somebody else.
Who Can Override a Power of Attorney?
Now, down to the main question of this article - three people can override a power of attorney. They are the principal, the attorney, and the court.
1. The Principal
The principal doesn’t need a reason to override a power of attorney. However, they must be mentally sound and fully aware of their decision.
They can inform the agent of their choice to revoke their power of attorney through word of mouth or a legal document that clearly states the revocation.
The Principal has to ensure that the agent, witness, and all relevant institution is aware of the revocation.
2. The Attorney
The attorney or agent can revoke their power of attorney if they don’t wish to hold on to it for any reason.
The best way to do it is to inform the principal verbally or through a legal document that states their wishes to revoke the role.
3. The Court
The court can also revoke a power of attorney under specific circumstances.
First, if a power of attorney wasn't in a sound mind at the time they made it, the court can revoke it.
Another instance that could lead the court to override the power of attorney is if the agent’s decisions do not align with the interest of the principal, who might be incapacitated.
Lastly, when the agent operates their POA illegally, the court could step in to override it.
For instance, in the case of a non-durable POA, if the agent continues to decide after the POA has expired, the court can override it.
Reasons to Override Power of Attorney
There are a couple of reasons why the principal might seek to override the power of attorney of their agent. Here, we explore a few.
1. Availability Issues
If the agent is not always available as needed by the principal, the principal can choose to override a power of attorney.
2. Death of the Principal
Another reason a power of attorney can be revoked is if the principal dies. The reason is that the agent’s role expires on the principal's death - unless there is a clause in the power of attorney document that makes the agent retain his role for a while.
3. Abuse of Power
In some instances, the attorney-of-fact might be exploiting the principal, using their power to make unauthorized decisions and take advantage of the principal. This can result in revoking a power of attorney.
4. Conflict of Interest
There could be a clash of interests between the principal and attorney-of-fact. This means that the attorney-of-fact keeps making decisions that violate or go against the principal's interest. In this circumstance, the principal can revoke the attorney-of-fact.
Steps to Overriding a Power of Attorney
The step to overriding a power of attorney isn’t rocket science. It’s effortless. You need to deal with the important parties - especially if you’re trying to override a power of attorney as a third party.
1. Inform the Principal
If you’re not the principal, but you’re concerned about the kind of decision that the attorney-of-fact has been making for the principal, you can call the principal's attention to it.
If you’re the principal but don’t like the agent’s decisions so far, you can proceed to prepare a legal revocation form.
You can override a power of attorney verbally, but it would only make any meaning when you document it.
When preparing the revocation form, the important details on it are; the principal’s name, social security number (optional), date of birth, address and signature.
It also has to contain the agent’s name and the date of the POA. It should also state clearly that it is a revocation of the power of attorney document. Two relevant witnesses must be present while signing it.
2. Notify the Agent
The principal should send a revocation notice to the agent so they know they’ve been stripped of their power.
Also, deliver a copy of the revocation document to everyone that matters, including the agent.
Ensure you alert your doctor, nurses, business partners, and every other institution and entity that knew the agent as your POA of the revocation.
3. Take the Matter to Court
You may not need to stand before a judge to override a power of attorney. However, if the agent refuses to step down, you can sue him in court.
In situations where they humbly stepped down, prepare for a new attorney-of-fact.
FAQs: Who Can Override a Power of Attorney?
Can a Family Member Override a Power of Attorney?
Yes, a family member can override a power of attorney. All they need to do is talk to the principal about how they think the attorney-of-fact isn’t acting in the principal’s interest.
If the principal is mentally incapacitated, the family member can proceed to inform the agent. They can file a petition if the agent is being stubborn.
Can a Sibling with Power of Attorney Prevent Other Siblings from Seeing a Parent?
No, a sibling with power of attorney cannot typically prevent other siblings from seeing a parent.
What Happens When a Power of Attorney Disagrees?
A power of attorney has to succumb to the principal's interest regardless of whether he agrees or disagrees.
What Are the Disadvantages of Power of Attorney?
A major disadvantage is that it says nothing about your assets and property when you die.
Also, the agent you chose to act on your behalf may subject you to abuse and bully you on your property and asset.
Can Irrevocable Power of Attorney Be Canceled?
Yes, it can - especially based on the death or incapability of the principal.
Conclusion: Who Can Override a Power of Attorney?
Now that you know who can override a power of attorney, feel free to override yours if necessary.
If you are being threatened by your agent, you can do the following;
- Secretly gather as much proof as needed of the threats and physical assault.
- Speak with a trusted lawyer for advice on the next line of action.
Reference Legal Explanations
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" Who Can Override a Power of Attorney?". Legal Explanations. Accessed on November 30, 2023. https://legal-explanations.com/blog/who-can-override-a-power-of-attorney/.
" Who Can Override a Power of Attorney?". Legal Explanations, https://legal-explanations.com/blog/who-can-override-a-power-of-attorney/. Accessed 30 November, 2023
Who Can Override a Power of Attorney?. Legal Explanations. Retrieved from https://legal-explanations.com/blog/who-can-override-a-power-of-attorney/.