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Who Can Override a Power of Attorney (POA)?

Posted by Nina Whitehurst | Mar 15, 2023 | 0 Comments

A power of attorney (POA) is a legal agreement that gives a person (agent or attorney in fact) the ability to act on behalf of another person (principal). A common question asked about POAs is under what circumstances a person can override them.

POAs 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 the principal is 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 a POA if you have sufficient mental capacity to understand what you are doing.

What Is Revocation?

A principal can also revoke a POA comopletely. 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 POA.

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

Overriding a POA Through the Court

A second way a POA can be overridden is through court intervention. For example, if you, as an agent or attorney in fact, are no longer of sound mind, a court can remove you for for that reason or for acting improperly or acting in a manner that abuses your responsibilities as set forth in the POA.

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 him or her 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, the guardian or conservator can then request the termination of a particular agent's authority.

Can Your Agent Refuse to Fulfill Their Duties?

An agent can decline to serve. When choosing an agent under a power of attorney, it is best to have discussed the responsibilities with of the role before appointing him or her so that you can do your best to avoid such a situation.

Even if your agent had agreed to act in this role, he or she can still resign after being appointed. This is one reason it may be a good idea to consider naming a successor agent.

Connect With the Experts

If you have questions about revoking a power of attorney or creating a new POA that overrides a prior one, it is best to speak with your estate planning attorney. Each state's laws are quite specific regarding the power of attorney process, so you need to be sure you understand how to comply with applicable requirements.


About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...


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