Who Can Override a Power of Attorney?

The  individual who has created the power of attorney (known as the principal) can typically override or revoke their own power of attorney (POA), but termination rights depend on the type of POA and the reasons for canceling it. This situation could come up if the person named as agent under the power of attorney goes against the instructions and wishes of the principal. 

A power of attorney is a legal document that gives a trusted party (an agent or attorney-in-fact) the right to make decisions on another person’s (the principal's) behalf. 

A power of attorney can give an agent authority to make financial and healthcare decisions for the principal. The decisions an agent can make for the principal can be limited or all-encompassing, depending on what powers the principal grants to the agent. 

Common types of POAs include the following:

• Health care power of attorney. A healthcare POA enables an agent to make medical decisions for the principal. 
• Financial power of attorney. A financial POA allows the agent to handle the principal’s financial affairs. 
• Durable power of attorney. A durable POA is the term used to describe any POA in which the agent's powers remain effective after the principal is incapacitated.
• Springing power of attorney. A term used to describe any POA that kicks in or "springs" into effect upon the occurrence of a specified event, such as the principal's incapacitation.

Individuals planning their estate, family members of those with a power of attorney should understand the different types of POAs, who can override them, and the situations in which they can be revoked. 

3 parties who can override a power of attorney

A power of attorney gives an individual the legal authority to make financial or medical decisions or carry out particular tasks for the principal. Three parties can revoke this right: the principal, legal guardians, or the court.

The principal

The principal can cancel the power of attorney at any time as long as they are of sound mind. They can decide not to have a power of attorney or create a new agreement with an alternate agent. 

Legal guardians or conservators

If the principal does not have the mental capacity to make informed medical or financial decisions, a court may appoint a legal guardian (also known as a conservator in many states). A guardianship or conservator's authority can override an existing power of attorney. 

A guardian or conservator has the authority to make choices for and represent an individual whom the court has determined incapable of making their own decisions. 

The main difference between a power of attorney and a guardianship is that a guardianship is court-ordered. With a power of attorney, the principal chooses the agent who will act on their behalf. With guardianship, a court appoints a guardian to manage an individual’s affairs. The guardian may or may not be a family member.  The court chooses the person who it believes will represent the incapacitated person’s best interests. 

Court intervention

Court intervention may be necessary in situations where the agent is not acting in the principal’s best interests. The court can override a power of attorney if it finds evidence of abuse or misuse of the power of attorney. 

Spouses and other family members usually do not have the right to override a power of attorney. 

However, if a concerned friend or family member believes that the agent is neglecting, taking advantage of, or otherwise breaching the power of attorney, they can petition the court.

They may petition the court to intervene if they suspect an agent has engaged in any of the following activities:

• Mishandling the principal’s finances
• Putting the principal’s well-being at risk
• Misusing the power of attorney, such as through forgery or using the principal’s assets for their own benefit

Reasons to override a power of attorney

A power of attorney can remain in effect as long as the principal is alive, but there are certain situations in which the principal or concerned loved ones may want to have the power of attorney revoked. 

There are several circumstances that may justify overriding a power of attorney, including a change in the principal’s preferences and cases involving misuse and abuse. 

• The agent misuses the principal’s funds. The agent is required to make decisions that are beneficial to the principal. If the agent is using the power of attorney for personal gain, the power of attorney should be revoked. For example, one reason to override a power of attorney would be if an agent was taking money out of the principal’s account without permission and using it for personal transactions. 
• The case involves coercion. An agent cannot force a principal to do something that is against their best interests. For instance, if an agent coerced an elderly principal to create the power of attorney in exchange for a personal loan, that could be considered elder abuse. Cases of theft, embezzlement, fraud, and abuse involving a power of attorney may warrant legal action.
• The principal changes their mind. The power of attorney should reflect the principal’s wishes. As long as the principal has the mental capacity to make their own decisions, they can change their mind and cancel the power of attorney at any time.
• There is a change in the relationship. The principal may consider revoking a power of attorney if there has been a change in their relationship with the agent. For instance, if the agent develops a health problem that interferes with their ability to act on the principal’s behalf, or if the principal and the agent have a disagreement that can’t be resolved, the principal may want to end the power of attorney. 
• The agent combines assets with the principal. The agent should keep their personal assets separate from the principal’s. The agent cannot use the principal’s finances and property as their own. For example, an agent cannot move into a principal’s rental property and stay for free, unless otherwise specified within the power of attorney document. 
• The agent incorrectly documents or hides essential information. Other red flags signaling that it’s time to override a power of attorney include if the agent refuses to share information with the principal upon request, doesn’t retain receipts, or hides information from the principal’s financial institutions.
• The agent oversteps their authority. An agent cannot take actions that are prohibited in the power of attorney document. For instance, if a healthcare power of attorney document states that the principal does not want a certain medical procedure, the agent cannot advocate for that procedure and should ask the principal’s healthcare providers to pursue alternate treatments. 

How to revoke a power of attorney

There are a few essential steps involved with revoking a power of attorney, including speaking with a lawyer, documenting the revocation, and seeking court intervention if needed. 

1. Consult an attorney

Laws regarding revocation of a power of attorney vary by state. 

It’s important to seek legal advice from an experienced lawyer who can walk you through the requirements for your area and ensure that you comply with applicable laws. 

2. Document the revocation in writing

Once you understand the legal requirements pertaining to your location, you will need to create a clearly written revocation document. 

The revocation document typically includes the following information:

• The name and address of the principal
• The name and address of the agent
• The date the original power of attorney became effective

You may need to have witnesses or a notary present when you sign the document, depending on applicable laws. 

3. Notify the agent and relevant institutions

The next step is notifying the former agent and any relevant entities (such as financial institutions or healthcare providers) that the power of attorney has ended. Notification requirements can vary based on location, and you may need to file a copy of the revocation document with a local government agency. 

4. Destroy copies of the old POA document

You should destroy any copies of the old power of attorney document that no longer apply to avoid confusion and potential misconduct. Remember to retain a copy of the revocation of power of attorney form for your own records. 

5. Seek court involvement if necessary

If you are not the principal, and you believe the principal should revoke a power of attorney, your first step should be to speak with the principal about your concerns. 

If the principal is mentally incapacitated, and you believe the agent is neglecting their duties or taking advantage of the principal, you should talk to a lawyer. A lawyer can request that the agent resign from their role. If there is an alternate agent specified in the power of attorney document, the new agent can step in. 

If there is no other agent named in the original power of attorney document, a lawyer can petition a court to have the power of attorney revoked and ask the court to appoint a temporary guardian during the proceedings. 

A skilled lawyer can gather evidence to prepare a strong case against the agent and fight to have the power of attorney terminated. 

FAQs

Do you need a lawyer to revoke power of attorney?

You do not need a lawyer to revoke a power of attorney. However, a lawyer can facilitate the revocation process. 

A lawyer can fulfill the following duties:

• Provide legal advice
• File a lawsuit to cancel unauthorized transactions made by the agent
• Ask the court to appoint a legal guardian if necessary

A lawyer who specializes in estate planning can ease the stress involved with revoking a power of attorney, especially if the situation is complex or there are a lot of people involved. 

Can a family member revoke a power of attorney?

A family member generally can’t revoke a power of attorney. If there are red flags, a family member can petition the court to have the power of attorney terminated.

Can a spouse override power of attorney?

They typically cannot override power of attorney. However, they can petition the court if they believe the agent is misusing the power of attorney. If the court finds evidence of misuse, it may cancel the power of attorney. 

Can the principal who is still of sound mind override a power of attorney?

A principal of sound mind can override a power of attorney and remove an agent’s authority to make decisions on their behalf.