Overriding a Power of Attorney

James Saintvil • 18 January 2023

A power of attorney is a legal agreement that gives a person (“attorney-in-fact” or “agent”) the ability to act on behalf of another person (“principal”). A common question asked about a power of attorney is under what circumstances one be overridden.

A power of attorney 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 your power of attorney if you have sufficient mental capacity to understand what you are doing.

WHAT IS REVOCATION?

The act of overriding a power of attorney 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 power of attorney.



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 power of attorney;
  • Putting provisions in a power of attorney 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; or
  • A power of attorney can also naturally terminate upon the conclusion of a specific event, such as in a situation where the principal had entered into a power of attorney solely to close a particular real estate transaction.

OVERRIDING A POWER OF ATTORNEY THROUGH A COURT

A second way a power of attorney 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 power of attorney.


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.

SEEK OUT A LOCAL PROFESSIONAL

If you have questions about revoking a power of attorney or creating a new power of attorney that overrides a prior one, it is best to speak with a professional in your area. Each state’s laws are quite specific regarding the power of attorney process. A professional can help you understand how to comply with applicable requirements.

Recent Posts

Two pencils on a bright yellow background
by James Saintvil • 15 February 2023
Estate planning entails preparing your affairs for the future, including death and other life events. While older adults might give more thought to estate planning, it is an essential tool at any age.
Man in dark clothes sits on a brown leather couch, hand on forehead, in a dim room with a dark wall.
by James Saintvil • 1 February 2023
An executor (or personal representative) is a person or entity you choose to carry out your last wishes outlined in your will. Your executor should be someone you trust is responsible enough to manage your estate after you pass away. Choosing an executor is a big decision when it comes to estate planning. So, what should you know about an executor? What should you consider before naming an executor? Here are answers to three common questions about executors.
Grayscale human skull isolated against a black background
by James Saintvil • 4 January 2023
A power of attorney is a powerful planning document that enables you (the principal) to give another person (the agent or attorney-in-fact) the power to act for you while you are alive.  Because powers of attorney are often prepared in the context of estate planning, many believe they give their agents the power to continue acting after their death. Although every state’s laws and forms vary, most power of attorney forms specify that the agency relationship created by a power of attorney ends upon a person’s death.
Holiday market table filled with assorted Santa, snowman, and reindeer figurines and ornaments
by James Saintvil • 21 December 2022
Following the death of a family member, you may find yourself needing to sort through many possessions accumulated over the deceased’s lifetime. An estate sale is one way to distribute those items that you do not want or need quickly and efficiently.  While selling someone’s furniture, jewelry, artwork, antiques, and other belongings yourself can mean a great deal of time and effort on your part, there are companies that help families sell items. An estate sale company will do all the work in exchange for a percentage of the proceeds—typically anywhere between 25% and 50%. The company usually handles organizing the inventory, staging the house, appraising the value of items and setting prices, promoting the sale to the public, and hiring workers to run the sale. You may need to pay a separate fee to the liquidator for cleaning up following the sale, including donating or disposing of any goods that do not sell. Keep the following in mind when getting ready for an estate sale:
by Jayde Law PLLC • 7 December 2022
Although inflation is generally nothing to be pleased about, the IRS recently announced inflation-adjusted changes to the annual gift tax annual and estate tax exclusions for 2023.
by Jayde Law PLLC • 23 November 2022
Required Minimum Distributions (RMDs) are the minimum amounts a retirement plan account owner must take out each year.
by Jayde Law PLLC • 9 November 2022
November is National Family Caregivers Month. You may have a caregiver in your life to whom you wish to bestow your gratitude by designating them as an heir in your estate plan.
by Jayde Law PLLC • 26 October 2022
If you are considering preparing a will, this is a great first step in planning for the future.
by Jayde Law PLLC • 12 October 2022
After losing a loved one, consider the best way to honor them and their life. Sometimes, a traditional funeral is not the best fit. Today, there are many alternatives to a traditional funeral service and burial.
by Jayde Law PLLC • 28 September 2022
There are many misconceptions about estate planning, and any one of them can result in costly mistakes. Understanding who needs an estate plan and what it should cover is key to creating a plan that is right for you.
Show More