Who can override a power of attorney BF Blog

Who Can Override A Power Of Attorney

There may come a time when you or a loved one may not be able to make decisions for yourself. Should you become incapacitated you will need a trusted person to take over your financial matters in the form of a Power of Attorney (POA). A Power of Attorney may also be needed to help with your health care decisions. If you are unable to make your own decisions, can a spouse, a close family member, or a good friend work on your behalf? However, you must have the utmost confidence in the person that you are placing your financial, health, and well-being to act in good faith.  Or else you may find a family member trying to change this authority.  Which begs the question, who can override a power of attorney?

How can anyone override the power of attorney? What reasons must they have? What is the process for who can override a power of attorney? How long will it take to override a power of attorney? How much does it cost to create a POA? Let’s delve into this to learn more about the power of attorney.

What Is A Power of Attorney?

A power of attorney is a legal document that allows an agent to work on your behalf in case you are temporarily or permanently disabled. If you are incapacitated a court-ordered agent may be assigned to act as your guardian, conservator, or committee. However, most people would prefer to pick their own attorney to help them with their power of attorney. This helps avoid guardianship not of their choosing. Consequently, at this point, you become the principal of the power of attorney and all of your care is placed under the agent’s authority.

A POA document can also be used to make your life more convenient.  If you are unable to be present for the purpose of selling a car or closing a real estate deal, a POA can be used to facilitate a variety of transactions. The power of attorney document can include the following legal action:

  • Signing documents and handling administrative issues.
  • Selling and managing property.
  • Financial decisions for opening a bank account and handling financial transactions between banks and creditors, or other third parties.
  • Medical decisions and end-of-life medical treatment.
  • Filling Taxes for the principal.

However, there are some things that a Power of Attorney cannot do:

  • Make decisions after the principal has died.
  • Transfer the POA to another person.
  • Vote on behalf of the principal during the current election season.
  • Override or amend the principals’ will.
  • Go against or change the principal’s end-of-life treatment.

Types of Power Of Attorney

The type of Power of Attorney is very important to ensure that what needs to be taken care of will be taken care of according to you, and your family, or in accordance with federal or state disability law. Hence, there are several types: Durable, General, Financial, Medical, and Military Power of Attorney for specific situations.

Durable Power Of Attorney

A Durable Power of Attorney remains valid until it is revoked or expires upon the death of the principal. For estate planning, the Durable POA may at times stay in effect if the principal is incapacitated. Non-durable POA will have a specific termination date.

General Power of Attorney

A General Power of Attorney is where the attorney-in-fact, also called the agent, is authorized to act on behalf of the principal. The power of attorney document should spell out the agent’s role, responsibilities, and duties. This is how the principal can limit the power of the attorney-in-fact. The limited power of attorney must be dictated by the POA documents. Hence, a power of attorney can be limited by circumstances, transactions, or time frame. In some cases, the agent can be limited by the law.

Consequently, a court can also designate an attorney-in-fact if the principal becomes incapacitated physically or due to their mental capacity. The courts have the authority to dictate the role, responsibilities, and duties of the agent.

Financial Power Of Attorney

The Financial Power of Attorney authorizes the agent to handle financial matters. This POA is regarding handling financial payments and distributing assets. This can include paying bills, handling retirement accounts and benefits, filing taxes, and selling or renting property. Hence, it is main purpose is to handle financial transactions as directed by the POA in the best interest of the principal. This is called a fiduciary duty.

Medical Power Of Attorney

Medical care is just as important as financial care with the Financial Power of Attorney. The Medical Power of Attorney allows the agent to make medical decisions for the principal. This POA authorizes all healthcare decisions including treatments, end-of-life care, and the selection of healthcare providers based on the principal’s wishes.

Military Power of Attorney

The Military Power of Attorney is for service members. It enables military personnel to take care of their personal affairs and manage their personal and financial affairs while they are deployed.

However, POAs can differ in how and when they can go into effect. A traditional POA is effective after it is written up, properly executed, witnessed, and signed. A springing Power of Attorney becomes effective upon a specific date or a condition to be met. The agent has no power until these terms meet specific situations.

Why Would You Need A Power of Attorney

A Power of Attorney can afford you peace of mind should you experience a physical disability or mental Incapacity. You need to have a sound body and mind to handle your personal and business affairs. The type of power of attorney you choose should meet all your immediate needs. Therefore, it is very important to choose an experienced lawyer for the type of POA that you will need.

 In addition, the person you intend to grant legal authority to handle your affairs is equally or just as important as the type of POA you choose. Therefore, it is a good idea to pick someone trustworthy, financially savvy, and who has the ability to make sound decisions. These decisions should be based on your desires and your best interest only.

Who Should Be Your Power of Attorney

If you are married, typically your spouse should be your Power of Attorney.  However, anyone such as close family members, an adult child, or a close friend can be considered. It does not have to be a lawyer. It is most important to pick the right person. They should be working for the best interests of the principal. This should be utmost in mind when choosing a person to oversee your affairs. On behalf of the principal, they should be experienced and responsible for keeping your financial affairs in order to execute the financial POA.  On the principal’s behalf, the agent’s powers will allow them to execute all the medical and end-of-life directors per the medical POA.

In some cases, a Power of Attorney can be part of your estate planning and end-of-life planning. A POA should be part of the process of getting your affairs in order. Therefore, there should be no confusion when you are unable to take care of these things for yourself.

Questions To Ask the Potential Agent

When choosing an agent, you need to know if they desire this responsibility and are also capable of performing these duties.  Here are some questions to ask.

  • Do they have the time to take on this responsibility?
  • Are they capable of handling your financial, medical, tax, or any other parts of your affairs?
  • Do they have any questions about the authority of the POA?
  • Do they have any physical or mental conditions that would prevent them from executing the POA as your agent?
  • Would there be any conflict with your family that would prevent them from acting as your agent?

Drafting Your Power of Attorney

A Power of Attorney is a standard legal document. It should contain the following seven items:

  1. The Title “Power of Attorney” is at the top of the page.
  2. It should be dated.
  3. The date of expiration for non-durable POA.
  4. The principal’s name.
  5. Name and address of the attorney-in-fact, i.e. agent.
  6. The authorization should detail the rights of the agent and the specific wishes of the principal.
  7. It should include the signature of the principal and the agent or agents.

Please note the rules and legal requirements for a POA do vary from state to state. Therefore, it is important to research your state’s requirements. Also, it is a good idea to revisit your Power of Attorney from time to time. It is important to make sure the agent you choose is still capable of working within the parameters of the original POA.  In addition, your circumstances may require updating to reflect your current personal situation, your family dynamics, or changes to your state laws. The best way to do this is to have a face-to-face meeting with your agent. An alternate agent may need to be added to handle any additional responsibilities or to lighten the load if the current agent is overwhelmed. In some cases, the current agent may need to be replaced or overridden.

Finally, the cost of creating a power of attorney can vary from $200 to $600 depending on the type of POA and the complexity of responsibilities.

Why And Who Can Override A Power Of Attorney?

There may come a time when changes might have to be made in regard to the person acting as your Power of Attorney Agent. There may have been a poor decision made, a duty left undone, stolen money or mishandled financial or medical responsibilities that were detrimental to the principal. In any case, the time may come to pass these duties on to another. However, the principal must be of sound mind to make this change to override the power of attorney. At this point, a family member may need to get involved to get the Power of Attorney revoked. Here are a few examples of why:

  • The power of attorney should have ended.
  • The document is invalid.
  • The principal was not of sound mind when the power of attorney was created.
  • The attorney-in-fact, i.e. the agent, is physically, mentally, or financially abusing the principal.

Once one or more of these conditions have been confirmed the next step is to begin the process of overriding the POA. Some individuals and institutions may have the power to override a POA:

  • The court has the authority to review, revoke, or modify a POA.
  • The principal can revoke or modify a POA as long as they are of sound mind.
  • A guardian or conservator appointed by the court can override or modify the POA.
  • Finally, the agent can choose to voluntarily relinquish or terminate their authority.

The time it takes to override a POA will vary depending on the circumstances. However, it typically takes a few days. You must draft the revocation or create a new POA. Then it must be notarized and sent to the agent.

Recap

A Power of Attorney can help you with planning for a time when you are unable to maintain your personal finances or medical decisions. The POA can also assist you in making certain situations more convenient. However, there could come a time when you may need to make changes or revoke it. Knowing who can override a power of attorney is just as important as getting one executed.  Therefore, it is important to understand what it can and cannot do for you and be prepared to modify it or override it.

Finally, it may have to be revoked altogether by you, the courts, a guardian, or the agent.

This content is for information purposes only.  Please consult a financial advisor and/or a law firm. I do not endorse any of the companies mentioned.  Please research and do your due diligence. I do not get paid if you click any of the links in this post.

Additional Reading:

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