Can anyone override the power of attorney? Who is legally allowed to do so? It can depend on the type of power of attorney in question and the reason why the cancellation is wanted. A power of attorney allows a person (Principal) to appoint a trusted person (Agent) to take action on his or her behalf if they are unable to do so. It’s typically drawn up because of declining health or in case of an injury. But it can also be put into use because of absence for any reason.
The principal can override any kind of power of attorney as long as they are still of sound mind and body. The principal can change their mind and revoke the power of attorney for any reason. If he or she decides they want to appoint another person as power of attorney, they can do that. Or they can revoke and cancel it altogether.
The principal might become worried that the person they appointed, the agent, whether it be a spouse, child, sibling, family member or friend, is abusing the power that comes with the POA. A power of attorney comes with certain responsibilities and needs to be taken seriously.
Friends or Family
In some cases, friends or family members may become concerned that the agent is making decisions, on behalf of the principal, for the wrong reasons. Sometimes, the principal is already not of sound mind and body and is unable to revoke the power of attorney themself. In this situation, someone other than the principal can take action.
An agent, that has been given power of attorney benefits, is legally required to act in the best interest of the principal. If you are a friend or family member of the principal and you believe that the agent is taking advantage of the principal and you think the power of attorney should be revoked, you can take legal action.
If you want to challenge the power of attorney, you will most likely have to challenge it in court. To challenge it, you must provide evidence to prove that the agent is being negligent or abusive. This could include receipts for things the agent has purchased with the principal’s money. Or you could demand they prove that they purchased extravagant things with their own money and not the principal’s.
How to Override a Power of Attorney
Making the decision to try to override a power of attorney should not be taken lightly. It is a big decision and not an easy process. Hiring an attorney with experience in elder law and disability law will be helpful.
You and your attorney can read over the power of attorney document and examine it closely. You will need to determine whether it is a regular power of attorney or a durable power of attorney. You will also need to check whether it has a date specified when the power of attorney will no longer be in effect. This will help determine the next steps to take.
If you wish to take a power of attorney away from someone, first you should talk to the principal. If the principal is still of sound mind and body, this would be the easiest route to take. Talk to the principal and tell them your concerns about the agent. The principal can take back the power of attorney.
If the principal does not take action or is not able to do so, you can approach the agent, through your attorney. You can ask the agent to step down. If the agent will not do so, you will need to make a court application for guardian and/or conservator to take care of the Principal’s best interest.
When Court is Necessary
If the agent refuses to step down and the principal will not or can not revoke the power of attorney, you will need to go to court. While the case is ongoing, your lawyer can petition the court to set aside the power of attorney and transfer guardianship while the case is happening.
In court, you will need to convince a judge that the agent needs to be removed. You will need to present evidence that the agent is not performing his or her duties and/or is not acting in the best interest of the principal. You and your lawyer may also have to convince the judge that the principal’s wishes need to be rejected because of mental incapacity.
If the agent will not step down and the principal won’t or isn’t able to revoke the power of attorney, an experienced lawyer is your best chance at convincing a judge to override the power of attorney.
An attorney can also work with doctors and other experts to help prove the principal’s mental incompetence. This could be vital in your case to override the power of attorney.