If you have a power of attorney (POA), it’s essential to know who can override it. In this post, we’ll look at the people or entities who can step in and make decisions for someone if they’re unable to do so themselves. We’ll also discuss what happens if there’s a dispute over who should be making decisions for the person with the POA. Read on to learn more!
What is a power of attorney, and what are its purposes?
When planning for your future, it’s important to nominate a power of attorney. A power of attorney is a legal document that allows someone to act on your behalf. This person (or persons) is known as your agent or representative. You, or the person initiating a power of attorney, are also known as the Principal. You can give your agent the authority to decide for you on a wide range of matters, including financial, medical, and legal issues.
Power of Attorney (POA) takes effect whenever you, the Principal, specify–you can choose to instate it immediately or only upon the occurrence of a certain event like a mental or physical disability rendering you unable to take care of yourself. In addition, you can revoke a power of attorney at any time, although most states require a written notice of revocation for the person you named as your agent.
What does a power of attorney allow you to do?
When you nominate a Power of Attorney, you grant that individual the right to make important life decisions on your behalf. On the Principal’s behalf, a power of attorney has the right to:
- Make critical healthcare decisions such as diagnostic testing and the continuation or the termination of medical treatments.
- Initiate a lawsuit.
- Decide on long-term living arrangements for medical purposes.
- Open bank accounts and manage finances and personal property.
- Accept income.
- Purchase life insurance policies.
- Select doctors and caregivers.
There are different powers of attorney, each granting different rights to the appointed agent.
The Different Types of Powers of Attorney
Generally, there are four types of power of attorney, General, Durable, Special (or Limited), and Springing Durable.
General Power of Attorney
A general power of attorney is a legal document that allows the agent to act on behalf of their principal in any matters as allowed by state laws. The person appointed with this agreement may be authorized to
- Handle bank accounts
- Sign checks
- Sell property
- Pay bills
They’ll also manage assets and file taxes if necessary.
When you’re not able to manage your affairs, a general power of attorney can be useful. However, since the agent has immense control over your assets, you may want to limit this type of power of attorney for a short period of time. A general power of attorney ceases to remain in place when the principal becomes incapacitated, revokes a power of attorney, or passes away.
Durable Power of Attorney
A durable power of attorney (DPOA) means that your agent’s authority to act on behalf continues if you become incapacitated (for example, falling into a coma, severe mental health impairment). It is effective immediately after signing unless otherwise stated.
Typically, when estate planning, it is assumed that the listed power of attorney is durable since you are planning for a time when you can’t make a decision alone and need help from others. To avoid confusion, it’s recommended that the principal explicitly state whether the POA is durable or not. As long as you’re capable, you can revoke the power of attorney form.
Non-Durable Power of Attorney
A non-durable power of attorney lapses as soon as you, the principal, become incapacitated or die. After one of these events occurs, only court-appointed guardians or conservators can make decisions on your behalf.
Special (Limited) Power of Attorney
Another type of power of attorney is called a special power of attorney. This POA grants agents the power to act on your behalf, but only for specific purposes. For example, if you grant the agent authority to sell a property on your behalf. However, the agent wouldn’t be allowed to access your bank account or manage finances.
A special power of attorney expires once the particular task is completed or at a specified time noted on the form.
A person can create several finite POAs for different agents, giving each agent different powers.
Springing Power of Attorney
A springing power of attorney only occurs when triggered by a specific event or medical condition (like incapacitation). Once the condition occurs, the agent’s power literally “springs” into effect. Until then, the agent does not have legal authority over your affairs.
Although springing POAs ensure agents can’t exert their power unless you’re incapacitated, it is not recommended to use springing POAs for estate planning since the process to determine if an individual is incapacitated isn’t always simple and may take time. For example, if you develop early-onset Alzheimer’s, it may be challenging to determine whether or not you can manage your affairs. This can delay critical decisions about your medical care and lead to unpaid bills, leaving you in financial distress.
Medical Power of Attorney
A medical power of attorney is a legal document allowing you to name a healthcare agent. It’s also called an advance directive because it helps guide your agent to the best treatment option when dealing with healthcare matters on your behalf. Healthcare agents make medical decisions for you if and when you cannot do so yourself.
Your agent can make decisions regarding:
- Medical care
- Artificial nutrition
- Organ donation
- The release of medical records
- The choice of doctor
Your healthcare agent also ensures medical providers follow your wishes as outlined in your Do Not Resuscitate (DNR Form) or Living Will.
A medical power of attorney becomes effective immediately after signing but can only take effect once a physician deems you mentally incompetent.
Once you select an agent (or agents) for your power of attorney, ensure they know the POA signing rules.
How is a power of attorney terminated or revoked?
When it comes to a power of attorney, you, the principal, can revoke the agent’s power at any time, provided that you have the mental capacity to do so. Even with a power of attorney in place – if something changes and you no longer feel comfortable giving out certain rights or assets for whatever reason-you can revoke the agent’s authority at any time.
It’s recommended that you revoke a POA in writing. However, most states allow you to cancel it through an action expressing your desire to terminate the POA (for example, deliberately destroying the document). Some states offer statutory forms, or fill-in-the-blank forms, for this purpose.
When you revoke a power of attorney, it’s also recommended that you send a written revocation notice by certified mail to the previously authorized agent. This way your agent knows that you terminated their power. Also, consider sending copies of your revocation to any third parties involved in your POA.
Who can override a power of attorney?
An agent with power of attorney is required by law to act in the Principal’s best interest. If the Principal believes the agent is acting in their own best interest, they can override a POA, if they are of sound mind. However, if the Principal is not of sound mind, other relatives may express concern that the agent is abusing their rights and responsibilities by neglecting or exploiting their loved one. In this case, legal action can be taken by concerned parties other than the Principal. Evidence must be provided to show the agent is taking advantage of the Principal.
What to do if there is a dispute over the validity of a power of attorney
The process varies by state, but if there is a dispute over the validity of a power of attorney, it is best to hire an attorney with experience in either elder and/or disability law.
If you believe the agent is not acting in the best interest of the Principal, follow these steps with your appointed attorney to revoke power of attorney:
- Meet with the Principal: If the principal is of sound mind, express your concerns regarding the agent in question. Urge them to remove or change their agent verbally or preferably in writing.
- Address the agent: It’s imperative to work through your attorney about this issue. Request that the agent steps down if the Principal refuses to revoke the POA. If the agent refuses, then an alternate agent must revoke a power of attorney. However, if the Principal didn’t name an alternate agent, you need to draft a court application for a guardian and/or a conservator to take care of the Principal’s affairs.
- Take the issue to court: If you’ve tried to meet with both the Principal and the agent and both refuse to revoke a power of attorney, you will need to go to court. Your attorney can petition the court to determine who should have power of attorney and request the court to transfer guardianship or conservatorship to someone else while the case is open.
You should consult an attorney if both the Principal and Agent refuse to stand down.
Power of Attorney Frequently Asked Questions (FAQs)
What does it mean to have power of attorney?
Having a power of attorney means you give someone else the ability to make decisions for your best interest if you cannot make them yourself.
Do I need a lawyer for power of attorney?
No, it isn’t legally required to have your power of attorney (POA) written or reviewed by a lawyer. However, it’s always good to get advice from wise counsel before signing away your power of attorney.
Are there any power of attorney limitations?
Yes, there are limitations that help keep the agent in check. The POA can’t transfer responsibility to another agent, cannot use the Principal’s assets for the agent’s personal interests, cannot make any legal or financial decisions after the Principal’s death, cannot distribute inheritances or transfer wealth after the Principal’s death, cannot accept compensation beyond the outlined terms in the POA agreement, cannot change or invalidate a Will or any other estate planning document, cannot change the terms of the nominating document, cannot act outside the Principal’s best interest, and cannot make any decisions before a POA is instated.
Who needs a power of attorney?
Everyone should have a power of attorney. If you aren’t able to provide for yourself, whether you’re mentally or physically incapacitated, you’ll want someone to carry out your wishes on your behalf.
Where to get a power of attorney done?
You can find a power of attorney form on state government websites. Hospitals and physician offices also offer forms for medical power of attorney. Additionally, banks and financial institutions have preferred forms.
What is a power of guardianship?
A court chooses who acts as a guardian on your behalf in a guardianship. Then, you decide who you want to act on your behalf with a power of attorney.
A power of attorney is a valuable legal document that can give peace of mind in knowing your wishes will be carried out if you cannot act on your own behalf. It is vital to choose the right person to be your agent and discuss your wishes with them, so there is no confusion about what you want to do. If you have a power of attorney in place, it is essential to keep your contact information updated with the person who holds the document. Then, should something happen, and you become unable to make decisions for yourself, your loved ones will know where to find the paperwork and how to proceed. Have you created a power of attorney for yourself?