Who Can Override a Power of Attorney: A Comprehensive Guide
Welcome to Foust & Foust, PLLC, a boutique law firm focused on estate planning, probate, and trust administration. Having a Power of Attorney (POA) can safeguard your wishes if life takes unexpected turns. In this article, we’ll clarify who has the power to override a POA and why it sometimes becomes necessary.
Understanding these rules will better prepare you to protect your interests or those of a loved one.
What is a Power of Attorney?
Before we explore who can override a Power of Attorney, it helps to grasp how a POA works. A POA is a written arrangement where one person (the principal) grants another person (the agent) legal authority to act on their behalf. This agent might handle your finances, sign documents, or even make healthcare decisions if you become incapable of doing so.
POAs come in several varieties, each with a different scope and timeframe. Some remain valid even if you lose decision-making capacity. Others automatically end if you become mentally or physically unable to manage your own affairs. Having the right type of POA can brighten your planning efforts by ensuring your agent fully comprehends their role and the duration of their authority.
Below is a quick list of common POA types, each reflecting a different need:
- Durable POA: Remains valid if the principal becomes incapacitated.
- Non-Durable POA: Ends if the principal is deemed unable to make sound decisions.
- Springing POA: Takes effect only if a specified event (often incapacity) occurs.
- Healthcare POA: Focuses on medical decisions, such as treatment options and care.
- Financial POA: Authorizes an agent to oversee financial or property matters.
Each type has its own purpose, so selecting the right one ensures your needs are met. Next, let’s discuss the limited group that can override an existing POA.
Who Has the Authority to Override a Power of Attorney?
Even though an agent under a POA holds considerable responsibility, there are a few circumstances where someone else steps in. Typically, only three parties can officially override or revoke a POA: the principal (if mentally sound), a court-appointed guardian or conservator, or a judge who decides the agent’s authority must end.
Below is a brief table showing who can override a POA and under what situations they may do so:
| Party with Override Authority | When They Can Override | Method of Override |
| The Principal | Anytime the principal still has mental capacity | Revokes the document in writing, notifies the agent, and, if needed, prepares a new POA |
| Court-Appointed Guardian/Conservator | When the principal is deemed unable to make decisions | Presents evidence to the court that the existing POA no longer serves the principal’s best interests |
| Court/Judge | When the agent breaches their duties or misuses their role | Issues a court order canceling or replacing the existing POA |
It’s worth noting that spouses, children, or friends cannot directly terminate a POA unless they fall into one of these categories or a judge validates their concerns.
The Principal
The easiest way to override a POA is for the principal to revoke it. As long as they are of sound mind, they can revoke, change, or replace it anytime. The revocation must be in writing, signed, and shared with the agent and relevant institutions. If the original POA was publicly recorded, the revocation should be filed the same way. The principal’s authority takes priority unless a court declares them incapable.
Court-Appointed Guardians or Conservators
If the principal can’t manage personal or financial decisions, a court may appoint a guardian. This guardian can override an existing POA if their authority conflicts with it. Courts give guardianship more legal weight than a POA, but won’t revoke a POA lightly—clear evidence must show the need for guardianship.
Court Intervention
If an agent misuses their authority, concerned parties can ask the court to step in. Courts can revoke a POA or appoint a new agent if there’s proof of misconduct, like unauthorized spending or actions beyond the agent’s scope. Documentation is key in helping the court assess the situation.
Reasons to Override a Power of Attorney
When is overriding a POA justified? You might picture obvious situations of wrongdoing, but the list also includes more subtle cases. Below are some common factors prompting a POA override:
Agent Misconduct
Agent misconduct, or stepping out of line, is a leading cause of POA cancellations. If the agent has abused financial control or pressured the principal into unwanted decisions, that’s grounds to revoke their power. Examples include:
- Using the principal’s money for personal expenditures.
- Withholding medical or financial details to exert influence.
- Manipulating or intimidating the principal to benefit the agent.
- Entering into deals or contracts outside the scope of the POA.
If you suspect misconduct, addressing it quickly helps protect the principal from negative consequences, such as debts, lost assets, or compromised health decisions.
Change in Circumstances
Sometimes, overriding a POA doesn’t stem from misbehavior: the principal might simply change their mind, or their personal circumstances evolve. For instance, perhaps the agent moves out of state for a new job and can’t effectively handle important business tasks for the principal. Or, the principal recovers from an illness and wants to resume managing finances alone. In those cases, the principal is free to cancel the POA and possibly enact an updated one that fits their new situation.
Even changes in relationship status can matter. Maybe the principal and the agent had a close bond that has cooled over time. If that bond dissolves or conflict arises, the principal may prefer a new agent. As long as the principal stays mentally capable, they can override existing arrangements and designate someone else.
How to Override a Power of Attorney
Overriding a POA can involve two main routes: revocation by the principal or intervention by a court or third party. Both routes often require formal paperwork and thorough documentation. Let’s look at the process more closely.
Revocation by the Principal
First, you’ll want a clear, written statement that cancels any previously granted POA. This revocation letter should include your personal information, details regarding the original POA, and the date. Sign it while still of sound mind. In some states, notarizing the revocation is recommended or required.
Once the letter is finalized, distribute it to the agent, plus essential organizations that relied on that POA—think banks, real estate offices, and healthcare facilities. Also, destroy any extra copies of the original POA to limit confusion about who represents your interests.
Finally, if you still need someone to help manage finances or health decisions, you can create a new POA with an updated agent. This measure ensures continuous coverage without relying on the previous arrangement.
Legal Action by Third Parties
When the principal cannot act (perhaps due to dementia or another severe condition), family or friends can step in. They typically start by talking to the agent to request cooperation. If that fails, they consult an attorney to gather proof of the agent’s misconduct or negligence. The attorney may file a court petition seeking to revoke the agent’s POA authority and name a temporary conservator or guardian.
During this process, a judge scrutinizes the claims. If the court finds that the agent abused their powers or the principal’s original intent has been violated, the court can either revoke the POA or assign a more appropriate guardian. These court actions can be time-consuming and possibly contentious, which is why it’s crucial to keep detailed records and consult legal counsel as soon as problems crop up.
Have Questions About Overriding a Power of Attorney? Contact Foust & Foust, PLLC, Today!
We understand that tensions can run high when the person holding a POA isn’t acting the way you believe they should. If you need guidance on revoking or updating a POA, feel free to call us at 865-203-4041 or visit our Contact Page to set up a chat.
We’re here to help put your mind at ease and keep your wishes protected.
