Durable Power of Attorney Override

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.

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.

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.

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.

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. If you need an experienced Elder Law attorney, please contact elder law and asset protection attorney Erich M. Niederlehner, owner of Trusted Elder Law & Asset Protection located in Pensacola, Florida and serving all in Florida or Alabama. Visit our website at www.TrustedElderLaw.com or call us at 855-ELDER-FIRM. If you need help with Medicaid planning to qualify for long-term nursing home care, estate planning for all generations and ages, probate, placement assistance with a nursing home or assisted living facility or bankruptcy asset protection services please learn how Trusted Elder Law & Asset Protection.