A power of attorney (POA) is a legal agreement that gives a person (agent) the ability to act on behalf of another person (principal). A common question asked about POAs is under what circumstances a person can override them.
POAs can be overridden. However, the “who” and “how” depends on whether the principal is of sound mind.
First and foremost, the principal can override a power of attorney at any time as long as they are of sound mind. The term “sound mind” refers to the state of mind and memory a person has at the time in question. So, as principal, you could override a POA if you have sufficient mental capacity to understand what you are doing.
What Is Revocation?
The act of overriding a POA is called revocation. Every state’s laws specify how revocation can occur, but typically, it is required to be in writing and must clearly express the principal’s intention to revoke a specific POA.
As the principal, you can revoke a power of attorney in many different ways, such as:
- Executing a new power of attorney, which states that you are revoking a prior POA
- Putting provisions in a POA that state it will terminate or become ineffective under certain circumstances, such as your incapacity
- Sending a written notice of the revocation to the agent and any monitor, secondary agent, successor agent, and any other relevant parties
- A POA can also naturally terminate upon the conclusion of a specific event, such as in a situation where the principal had entered into a POA solely to close a particular real estate transaction.
Overriding a POA Through the Court
A second way a POA can be overridden is through court intervention. For example, if you, as an agent, are no longer of sound mind, a court can remove you for acting improperly or acting in a manner that abuses your responsibilities as set forth in the POA.
If family members or friends are concerned about this situation, they can seek to have you removed as well. They would have to file a formal request with the applicable court to remove an agent and replace them with a new one. This request is made pursuant to the applicable state’s law governing powers of attorney.
A third option is when a concerned party seeks guardianship or conservatorship of the principal through the local court system. If a guardian or conservator is subsequently appointed, they can then request the termination of a particular agent’s authority.
Can Your Agent Refuse to Fulfill Their Duties?
An agent can in fact decline to fulfill their duties. When choosing an agent under a power of attorney, it is best to have discussed the responsibilities with of the role before appointing them so that you can do your best to avoid such a situation.
Even if your agent had agreed to act in this role, they can still resign after they have been appointed. This is one reason it may be a good idea to consider naming a successor agent.
Connect With the Experts
If you have questions about revoking a power of attorney or creating a new POA that overrides a prior one, it is best to speak with your estate planning attorney. Each state’s laws are quite specific regarding the power of attorney process, so you need to be sure you understand how to comply with applicable requirements.
Contact a certified elder law attorney(*), such as Linda Strohschein and her team at Strohschein Law Group, for questions about revoking a power of attorney or creating a new one that overrides what is already in place. To set up an appointment, contact Strohschein Law Group at 630-300-0627.
This information provided by Strohschein Law Group is general in nature and is not intended to be legal advice, nor does it constitute a legal relationship. Please consult an attorney for advice regarding your individual situation.
(*) The Supreme Court of Illinois does not recognize certifications of specialties in the practice of law and the CELA designation is not a requirement to practice law in Illinois.