How to Override a Power of Attorney

How to Override a Power of Attorney

Medical and financial powers of attorney (POA) are incredibly powerful and versatile documents. They provide the POA holder, or agent, with the ability to make life-or-death decisions on behalf of the person who executed the POA. However, these powers aren’t without limits, and there are several situations in which someone can override a power of attorney even after it’s been approved and used.

Below, we’ll discuss what powers are conveyed by a POA and in what situations a POA might be revoked or limited.

The Rights Endowed by a Power of Attorney

There are two main types of POA: medical and financial. A single person (like a spouse, parent, or adult child) can often be the agent for both types of POA.

  • A financial power of attorney allows the agent to make financial decisions on the principal’s behalf. The term “financial POA” can include both a durable POA and a general POA. A durable POA will endure even beyond the principal’s incapacitation, while a general power of attorney may be restricted or end when the principal becomes incapacitated. The powers bestowed by a financial POA can include the ability to pay bills, file income tax returns, or even take out loans on the principal’s behalf.
  • A medical power of attorney lets the agent direct the principal’s medical care when the principal can’t do so themselves—whether the principal is permanently incapacitated or needs someone to address a mid-surgery complication. Having a medical POA on another person’s behalf doesn’t give the agent the authority to override the principal’s decisions about their medical treatment unless they are truly unable to act in their own best interest.

It’s also important to note what rights a POA does not include. A POA can never:

  • change the principal’s will
  • make financial or legal decisions after the principal dies
  • take any actions that are not in the principal’s best interests
  • transfer their powers of attorney to another person without the principal’s written consent

Within these bounds, a POA can include as many or as few powers as the principal wishes.

Who Can Override a Power of Attorney

Depending on who seeks to override a power of attorney, the process can be fairly simple—or all but impossible.

The principal can always revoke a POA at any time and for any reason (unless they’ve been declared legally incapacitated). But an all-too-common situation occurs when other family members or loved ones see a principal being taken advantage of by the POA agent. The principal may not be willing to revoke the POA, which means the concerned family members may need to take the case to court.

Generally, to petition to withdraw or override a power of attorney, the petitioner will need to show that they have a close relationship with the principal—which means petitioners are most often an adult child, sibling, or another family member. Those who don’t fall into this category but are still concerned about a loved one’s well-being may be able to petition for an adult guardian ad item (GAL) to be appointed to determine the principal’s best interests and whether he or she should be declared incapacitated.

Steps to Withdraw a Power of Attorney

If a principal wishes to withdraw their POA, they’ll first need to send a written revocation of the POA. It’s important for this revocation to detail each of the revoked powers (or include a copy of the POA and refer to it). In some states, the written POA withdrawal may need to be notarized to be legally valid.

After the principal has sent this written notice of POA withdrawal, it’s important to shred any copies of the POA that currently exist. Suppose the principal is unavailable or incapacitated when a POA is needed, and there are copies of an outdated or invalid one in the principal’s belongings. In that case, it’s possible that medical providers or family members could end up relying on this invalid POA.

Steps to Override a Power of Attorney

The process becomes more complicated when someone other than the principal wishes to override a power of attorney, or when the principal is incapacitated and can no longer act in their own best interest. It’s important to seek legal advice when attempting to override a POA, as the evidentiary burden is high.

  • Consult the principal. If the principal is willing to hear your concerns and respond to them by removing or limiting the agent’s powers, it’s unlikely you’ll need to escalate the case to court.
  • Contact the agent. Though having a person-to-person confrontation may not be productive, you can use your attorney to request that the agent step down or relinquish their powers. This request is generally in writing and can later be used as evidence if the matter goes to court. If the agent steps down and there is no alternate agent, a court will need to appoint one.
  • File a petition with the trial or probate court. This petition may seek to withdraw or suspend the agent’s powers, remove the agent, establish a conservatorship for the principal, or take some other action.

Though there may be some situations in which an agent realizes they’re in over their head and are willing to step back from their duties, in many cases where the principal is unable or unwilling to withdraw the POA, the concerned family members will need to take the case to court.

Court Proceedings to Override a Power of Attorney

If you need to take any sort of POA issue to court, it’s important to determine the outcome you’re seeking.

  • Do you want to remove and replace the agent?
  • Do you want to seek restitution from the agent for unauthorized spending or waste?
  • Do you want the principal declared incapacitated so that a conservatorship may be established?

The answer to these questions, among others, will guide the type of proceedings you initiate. Your attorney can work with you to assess the facts and determine what paths to relief may be available.

Generally, to override a principal’s interests, you’ll need to show that they’re legally incapacitated or otherwise incapable of making decisions in their own best interest. This burden of proof can be an uphill battle and may require you to produce medical and psychological records, as well as testimonial evidence that the principal’s autonomy should be limited. Trying to argue that a loved one can no longer make their own decisions can be an emotionally painful process. Your attorney can take on the burden of gathering evidence and building a case.

You’ll also need to convince the presiding judge that the agent is violating their duties under the POA and should be removed. If you have someone else in mind to serve as agent (or would like to step into this role yourself), you’ll need to provide additional evidence that this agent will act in the principal’s best interest.

In Closing

Ideally, a POA can be a useful tool to allow others to manage one’s financial and medical affairs. But if a POA goes south or an agent goes rogue, having the POA revoked or overridden can be a complicated and emotionally fraught process. It’s important to seek advice from an experienced probate attorney before you embark on this journey.

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