A power of attorney (POA) allows a person (the Principal) to designate a trusted individual (the Agent or Attorney-in-Fact) to act on their behalf if they cannot do so themselves — typically because of old age or declining health.
Nevertheless, situations may arise where overriding — or, in legal terms, “revoking” — this authority is necessary, such as abuse of power or a change in the principal’s wishes.
Generally, unless the power of attorney specifies otherwise, the following three categories can revoke (override):
- The principal themselves, as long as they are mentally competent;
- The principal’s guardian, if they have been granted the relevant guardianship authority; and
- The court, particularly in cases where the agent’s actions are not in the Principal’s best interests.
Why do you need a POA, and what are the main reasons to override one?
A power of attorney is usually set up when you (as the principal) appoint someone else (an agent) to make decisions on your behalf, either because you won’t be present at the location, you trust their opinion, or you might not have the capacity to make necessary decisions on your own.
Different types of power of attorneys are necessary for different situations.
The most common ones are general power of attorney, durable power of attorney, springing power of attorney, and medical power of attorney.
Usually, when people seek to override a power of attorney, it’s for one of the following reasons:
- The POA was acquired out of deceit
- The agent does not have or no longer has the best interest of the principal in mind
- The principal who signed the POA did not have the mental capacity to do so
- The principal no longer trusts the judgment of the attorney
- Family members have a dispute over the POA or the agent’s authority
- The principal is now in better shape (in case of a medical power of attorney) and would like to take their own decisions
Who can override a power of attorney?
If the principal’s wishes are not being met, the principal can override the power of attorney.
However, after the principal’s death, or in cases where the agent is abusing the power they have been entrusted with (or having their authority as POA abused), and the principal cannot act upon it, a guardian (either court-appointed or otherwise) or a loved one (family members, friends, concerned parties, etc.), can file for legal action to take the responsibilities of the power of attorney away.
How do you override power of attorney?
In cases of real estate planning, financial decisions, or medical decisions, drafting a power of attorney document is more than just a good idea — it’s often necessary to keep everything above board and legal.
Likewise, situations sometimes arise where a POA may need to be revoked (as mentioned above, instances of the agent not adhering to the principal’s wishes, the agent being unwell, or of the agent being manipulated).
So, let’s go ahead and see how to override power of attorney:
If done by the principal
The principal has the right to revoke a power of attorney at any time and appoint an alternate agent (provided they’re of sound mind).
However, for the revocation to be valid, the principal needs to expressly state their intent to revoke the POA in writing.
Some states allow an oral revocation too, but it’s always best to have it in writing.
Here’s what to do next:
Step 1. Go to PandaDoc, and select the Revocation of Power of Attorney template.
Step 2. Click on the auto-fillable fields, and assign the names of the principal and agent.
Step 3. Select the signature field, write the date, and draw or upload your signature.
Step 4. Send the document to your notary (please check if your state law allows the use of e-signatures) by clicking on Send > Send via email/Send via link. Alternatively, if you don’t wish to send your document to a traditional notary, you can notarize documents with PandaDoc’s Notary too.
Step 5. Once the notary has signed the document, send the document to your agent (as well as other relevant persons/institutions, such as healthcare providers, law firms, or board of directors).
Step 6. In some cases, you might also need to set up a new power of attorney, which can be done by signing a power of attorney form or another legal document.
How to revoke power of attorney
There are multiple types of power of attorney, but they can be broadly distributed into two categories. Medical POA grants someone the ability to make crucial medical decisions for the principal if they’re incapacitated. Similarly, financial POA allows an agent to handle the principal’s monetary affairs, such as paying bills or finalizing real estate transactions.
Assigning power of attorney is an important step in end-of-life planning. It’s a way to ensure the principal’s wishes are carried out if they’re physically or mentally unable to take those actions themself. If an agent becomes unsuitable, then family and friends may want to investigate the possibility of revoking POA.
If an agent is unfit for their position, it’s important to understand the details of the principal’s POA documents before taking any action. Determine what type of POA the agent has, the extent of their responsibilities, and if an alternate agent has been named. It can be a difficult process, but an estate planning attorney can help.
Option 1: Speak to the principal
Consulting the principal should always be the first path. Explain any concerns about their chosen agent. If they’re of sound mind, the principal can override power of attorney verbally and select a new agent. It’s also a good idea to have them complete a revocation of POA form so the decision is officially documented.
Option 2: Address the agent
If the principal can’t or won’t revoke power of attorney, the next course of action can be to speak to the agent. It’s best to do this through an attorney. That way, there’s no room for misinterpretation.
An attorney will formally request that the agent steps down. If an alternate agent was named in the original POA documents, they’ll step into the agent role. If not, an attorney can assist with the process of petitioning for a conservator or guardian.
If the agent disputes the request that they step down, then it becomes a matter that may have to be settled in court.
Option 3: Take it to court
If the first two options fail, the matter can go to court. There, an attorney can ask the court to override the agent’s power of attorney. It can be a long and challenging process, particularly if the principal named a durable POA. An attorney may also ask the court to appoint a temporary conservator or guardian while the case unfolds.
The judge will require evidence that the agent is neglecting or abusing their duties. There also needs to be proof the principal is not of sound mind and should have their wishes overruled. A good attorney will help by building a case against the agent and bringing in experts to evaluate the principal’s capacity.
Things to consider when setting up a POA
As the saying goes, a little prevention is worth a lot of cure, so here are a few things you should consider before setting up a power of attorney:
1. Different states have different rules
Different states have different rules on how to set up a power of attorney, how to revoke them, how to sign documents for revoking, etc. (You can access state-specific POA templates from PandaDoc’s library.)
2. Add an expiration date to your POA
If you’re trusting a stranger as an agent, we highly recommend you add an expiration date to your POA (aka, set up a general power of attorney or a springing POA).
3. Know your rights and responsibilities!
While a principal has many rights, there are some responsibilities attached to being a principal, too, such as being extremely clear in your instructions.
4. Always date, sign, and create your legal documents in writing
Always date, sign, and create your legal documents in writing. Speaking of which, PandaDoc is a free solution that allows you to create legally valid, free e-signatures, so you can sign your important documents with PandaDoc without any worry!
The Bottom Line:
In short, a power of attorney (POA) allows someone to appoint an agent to make decisions on their behalf. Reasons to override a POA include misuse by the agent, changes in the principal’s wishes, or disputes among family members. The principal can revoke a POA in writing if mentally competent, or legal action can be pursued through the court system. It’s important to understand state-specific rules and consult with an estate planning attorney for guidance.