Suppose a power of attorney grants a family member the authority to make financial decisions for their elderly loved one. Because the role requires for them to pay the elder’s bills, among other things, they must have access to the elder’s bank accounts.
One day, when the elder’s other family members are reviewing their bank statements, they notice large sums of money missing from their accounts, which exceed the amount of their bills and other expenses. They suspect the family member with power of attorney is abusing their authority by making improper withdrawals of money.
Can a power of attorney be revoked in this situation? If so, who can override a power of attorney? The answers to these questions are complicated and depend on a couple variables. First, is the elder of sound mind? Second, what are the terms of the power of attorney?
For example, it’s possible the terms of the power of attorney require for the family member in charge of the elder’s finances to grow their assets, which could explain why large sums of money are missing from the elder’s accounts.
The bottom line is that power of attorney documents can be complex. What may appear to be misconduct may not be, and vice versa. It also may not be immediately clear who can override the power of attorney.
For this reason, if you suspect power of attorney abuse, it is best to discuss your suspicions with a knowledgeable power of attorney lawyer, who generally will have the tools to investigate the situation further.
How Does a Power of Attorney Work?
A power of attorney (POA) is a legal document that is signed by someone (called the principal) to authorize another person (called an agent or attorney-in-fact) to make medical or financial and legal decisions on their behalf.
An agent who’s been authorized to make medical decisions on the principal’s behalf is under a health care power of attorney (also sometimes referred to as a medical power of attorney), whereas an agent who’s been authorized to make financial and legal decisions on the principal’s behalf is under a general power of attorney (also sometimes referred to as a financial power of attorney).
Powers of attorney can be broad or limited in scope, and can take effect at different times. For example, a durable power of attorney takes effect upon signing and remains in effect until the principal’s death. Conversely, a springing power of attorney takes effect only after the principal’s treating physician has declared them to be incapacitated.
There are many reasons why a power of attorney may be signed by a principal, but one of the most common is to designate someone they trust to act on their behalf should they become incapacitated in the future. If a person loses capacity prior to signing a power of attorney, they will have lost their ability to sign one, as capacity is required to execute a valid power of attorney.
Should a person who lacks capacity require assistance managing their personal or financial affairs, they likely would need to be under a conservatorship, which can be substantially more restrictive than a power of attorney since it’s supervised by the court. Hence, a power of attorney frequently may be signed by a principal as a precautionary measure to avoid potentially being placed under a conservatorship in the future.
Can a Power of Attorney Be Revoked?
While a power of attorney can provide for elderly or incapacitated principals to have the help they need to manage important aspects of their lives, there’s always a risk the power of attorney will be misused, leading to financial losses for the principal. Luckily, powers of attorney generally can be revoked.
Take the example of an agent with general power of attorney who has the authority to make safe investments with the principal’s money. If they misuse this authority to invest the principal’s money in a budding business endeavor of their own, which is unlikely to turn a profit for many years to come and is not a safe investment, this could lead to the principal’s finances being permanently harmed.
When an agent misuses a power of attorney by favoring their own interests (or the interests of their loved ones and/or business acquaintances) over the best interests of the principal, it is considered self-dealing, which not only is a form of power of attorney abuse but a violation of their fiduciary duties as well.
If it comes to light an agent is engaged in power of attorney abuse of any kind, it is crucial to take prompt legal action against the agent to prevent further harm to the principal or their finances, and to recover any money or property that was lost to the abuse and possibly even additional damages.
Under What Circumstances Can a Power of Attorney Be Revoked?
The circumstances under which a power of attorney can be revoked depend on the mental capacity of the principal. If a principal has capacity, they don’t need a reason for revoking the power of attorney. If a principal is incapacitated, a valid reason must exist for trying to have the document revoked.
According to California Probate Code section 4151, a principal with capacity can revoke a power of attorney in the following two ways:
- In accordance with the terms of the power of attorney.
- By a writing. This paragraph is not subject to limitation in the power of attorney.
A principal who lacks capacity will not be able to revoke a power of attorney; someone else will need to intervene to take legal action on their behalf. They can do this by filing a petition with the court to try to have the power of attorney revoked. In the petition, specific and verifiable acts of power of attorney misconduct should be provided to maximize the likelihood of a successful outcome.
Examples of financial power of attorney misconduct for which a POA could be revoked include:
- Overstepping authority
- Misappropriating or misusing the principal’s money or property
- Commingling the principal’s assets with outside assets
- Failing to provide accurate accountings
- Making risky investments using the principal’s money
- Failing to keep the principal informed
- Borrowing the principal’s money without express consent
- Disregarding responsibilities (paying the principal’s bills, rent, etc.)
If you suspect power of attorney misconduct of any kind, speaking with an experienced power of attorney lawyer at your earliest convenience is crucial. The longer you wait, the more likely it’ll be that the principal’s finances will suffer even more harm.
Do You Need a Lawyer to Revoke Power of Attorney?
Whether a person needs a lawyer to revoke power of attorney depends on who is seeking revocation.
If you are the principal and you have capacity, you generally will not need a lawyer to revoke the power of attorney; however, if you are revoking the document because your agent abused their position to make unauthorized financial transactions using your money, you may wish to hire an attorney to help you recover the assets you lost to the abuse and possibly even damages.
If you are trying to revoke a power of attorney on behalf of a principal, the revocation process will be significantly more complex for you. For this reason, it would be advisable for you to work with a lawyer, although there is nothing in the law to stop you from pursuing a claim on your own.
Having a lawyer on your team can help ensure the right evidence is collected to support your claim and that your claim is compellingly presented to the court — both of which can contribute to the probability of you securing the outcome you desire.
If you are concerned about an incapacitated principal’s financial wellbeing, it’s crucial you at least speak to a lawyer about what you can do to protect the principal’s assets.
Who Is Authorized to Revoke a Power of Attorney?
There are specific rules surrounding who can revoke a power of attorney. As we already discussed, when a principal is of sound mind, only they can revoke their power of attorney. The rules, however, can be a little more ambiguous when it comes to who can revoke a power of attorney on behalf of a principal of unsound mind.
In the following sections, we discuss different scenarios in which an override of a power of attorney is being sought. If you have questions about your right to revoke a power of attorney belonging to someone other than yourself, speaking with a power of attorney lawyer could prove helpful.
Can a Family Member Revoke a Power of Attorney?
It is natural to wonder whether you have the authority to revoke power of attorney if an agent is failing to fulfill their power of attorney obligations to a family member.
So long as a principal lacks capacity, their family members generally would be permitted to file a petition to have their power of attorney revoked. The family members would need to prove to the court why it would be harmful to the principal or their finances for the power of attorney to remain in effect.
Keep in mind that if you are filing a power of attorney revocation claim on behalf of an incapacitated principal, the principal likely will require someone else to take on the responsibilities that were previously being handled by their agent. A conservatorship will allow for a conservator to be appointed to manage your family member’s financial and/or personal affairs.
Does Next of Kin Override a Power of Attorney?
If a principal has capacity, the only way their next of kin would be able to override their power of attorney would be if the principal were to voluntarily revoke it.
On the other hand, if a principal is incapacitated, and they have an agent who has been designated to act on their behalf, their next of kin would not have the authority to override the power of attorney unless it was revoked by the court on petition.
Can a Friend Override a Power of Attorney?
It comes as a surprise to many that friends of incapacitated principals have the same rights as family members when it comes to filing a formal claim on the principal’s behalf to have a power of attorney revoked.
With that being said, if you plan to file a POA revocation claim as a friend of the principal, keep in mind that you may have to spend your own resources to litigate the claim. While you may be able to recover attorney’s fees and costs from the agent or even from the principal’s finances, that’s never a guarantee, so it’s a good idea to discuss your case with a knowledgeable lawyer before making any serious moves.
Can One Power of Attorney Supersede Another?
In most cases, one power of attorney can supersede another, as long as language is included within the most current power of attorney revoking all prior powers of attorney. This remains true whether you are referring to a new power of attorney document superseding an older version of the document, or a new agent superseding a former agent.
For example, if a principal has a power of attorney that authorizes an agent to act on their behalf solely in business matters, but they now want a power of attorney with a broader scope of authority, they could enact a new power of attorney to that effect that would supersede the old document and absolve their former agent of their authority.
Remember, only a principal of sound mind can enact a new power of attorney or designate a new agent. While their loved ones certainly can ask the court to revoke their power of attorney if they are incapacitated and their agent is not serving their best interests, that’s where their loved ones’ authority stops. At most, the loved ones of an incapacitated principal can file a petition for conservatorship to help the principal’s personal and financial needs get met after their POA is successfully revoked.
Does Conservatorship Override Power of Attorney?
It’s not uncommon for a conservatorship to serve many of the same purposes as a power of attorney, which is why it’s easy to get confused about which of these legal arrangements overrides the other.
That said, there are several key differences between conservatorships and powers of attorney to be mindful of. First, a conservatorship must be established after a conservatee’s incapacitation, whereas powers of attorney must be enacted before a principal’s incapacitation. In the same vein, a conservatorship is presided over by the court, whereas powers of attorney generally don’t require judicial oversight. Lastly, conservators are appointed by the court, whereas agents are designated by the principal.
Taking these differences into consideration, you’ll understand why a power of attorney is not always simple to override with a conservatorship. If a principal had made the effort before they lost capacity to designate an agent, it likely means they did not wish to ever be placed under a conservatorship. As such, if their power of attorney adequately covers the extent of their needs and is not causing them or their finances harm, the court may prefer to keep the power of attorney intact, since it is a less-restrictive alternative to a conservatorship, instead of overriding it with a conservatorship.
This is especially true if the power of attorney is durable, since that would mean the document has remained in effect through the principal’s incapacitation and reflects the original wishes of the principal who enacted the document.
Nevertheless, there are times when even a durable power of attorney can be successfully overridden with a conservatorship. If, for example, an agent for an incapacitated principal is abusing their powers by overstepping their authority and causing harm to the principal’s finances, it may be appropriate for the court to override the POA with a conservatorship, since the principal would not be permitted to enact a new power of attorney or revoke the one they currently have.
The court also generally would have the authority to establish a conservatorship to address any needs that are not being met by the principal’s POA. For example, if a principal had previously signed a general power of attorney to empower an agent to act on their behalf in financial and legal matters, but the principal does not have anyone to oversee their health care needs, the court may establish a conservatorship of the person (which would allow a conservator to manage the conservatee’s medical and personal needs) to fill the void left by the shortcomings of their POA.
Conservatorship vs. POA disputes vary from case to case, so it is impossible to say for certain whether a conservatorship would override a power of attorney, or vice versa, without conducting a careful analysis of the circumstances surrounding your case. For more information, it would be best to consult with a qualified POA lawyer.
Can a Dementia Patient Revoke Power of Attorney?
A dementia patient can only revoke a power of attorney if their cognitive condition has not yet significantly declined, as changing or revoking a POA requires a high degree of capacity, known as contractual capacity.
If a dementia patient’s cognition has declined to the point they cannot be relied upon to make sound decisions, someone else will have to file a formal claim to try to have the POA document revoked on their behalf.
Does a Guardianship Override a Power of Attorney?
In many states, the terms “guardianship” and “conservatorship” are used interchangeably to refer to a legal arrangement in which a person is appointed to oversee the personal and/or financial affairs of an incapacitated person. In California, however, these terms refer to two entirely different types of legal arrangements.
We’ve already covered in depth what a conservatorship is. A guardianship is a legal arrangement in which a responsible adult is appointed to manage the life and/or finances of a minor whose biological parents are unable to adequately tend to their child’s needs or provide them with a safe home in which to reside.
Guardianships generally are not at odds with powers of attorney in California, since the former involve minors and the latter involve adults. Only if an adult had temporary custody over a minor as a result of the minor’s parent having granted them power of attorney for child care might a power of attorney conflict with a proposed guardianship.
If a proposed guardian is arguing to have a power of attorney revoked in favor of them taking over a minor’s care, it’s possible the court will allow for the guardianship to override the POA for child care, since a guardianship is supervised by the court, and therefore, does a better job of protecting the minor. That said, it’s impossible to say for sure how such a case would play out, as many factors could affect the outcome of the case.
Who Can Override a Medical Power of Attorney?
Overriding a medical power of attorney (also known as a health care power of attorney or health care proxy) is not easy. Unlike financial powers of attorney, which generally allow an agent time to make decisions, and the principal and their loved ones time to dispute decisions, health care agents may not have the luxury of time when making medical decisions for the principal.
For example, if a person suffers a stroke, rendering them temporarily unconscious, emergency medical procedures may need to be performed on the principal. If the principal’s medical team needs consent to perform these procedures, they may seek it from their health care agent, who may not have the ability to discuss such decisions with the principal’s loved ones prior to providing consent. And, unlike financial decisions, medical decisions rarely can be reversed.
That said, if a health care agent is planning to provide consent for a medical procedure that will be performed on the principal months down the road, and the principal’s family disagrees with their decision to provide consent, they could potentially file a claim with the court to have the agent removed, but they likely would need to show the court that the agent was neglecting the principal or failing to look out for their best interests for their claim to be successful.
Can a Hospital Override Power of Attorney?
Hospitals generally cannot override a power of attorney when making decisions about an incapacitated patient’s health care. If a patient had signed a health care power of attorney or executed an Advance Health Care Directive, only the persons the principal designated to act on their behalf in medical matters will have the authority to do so. It generally is irrelevant whether the hospital disagrees with their decision.
Up until 2023, California had been one of the few states that allowed hospitals to override the wishes of an incapacitated person’s family if the incapacitated person did not have a POA or any advance directives. As of this year, however, it will be possible for surrogates (which can be anyone from the principal’s next of kin to the person who brought them to the hospital) to be designated to make health care decisions for principals without POAs or advance directives.
This new law is a relief to many who were concerned about the prospect of having a hospital overriding their wishes around a family member’s medical care.
Can a POA Override an Advance Directive?
A POA generally cannot override an advance directive (also known as a living will). While an advance directive allows the signer of the document to provide instructions around the type of medical care they desire in specific scenarios, a health care power of attorney generally is used to empower someone other than the principal to make medical decisions and provide consent on the principal’s behalf in the event the principal becomes incapacitated and cannot make sound health care decisions themselves.
Because the purpose of a health care power of attorney is different from that of an advance directive, a health care agent usually do not have the authority to change or revoke the advance directives of the person they represent.
That said, if they have reason to believe the principal’s advance directives were obtained by means of undue influence or some other form of manipulation, or were signed by a principal who had already had lost capacity, they potentially could petition the court to try to have the advance directives revoked.
How Do You Take Power of Attorney Away From Someone?
To take power of attorney away from someone, the power of attorney document will either have to be revoked using the proper procedures by the principal themselves (given the principal has capacity) or be revoked by the court through the successful filing of a formal POA revocation claim by someone other than the principal (given the principal lacks capacity).
While we’ve already gone over the simple procedure a principal of sound mind can use to revoke their POA, we’ll discuss in detail the steps an incapacitated principal’s loved ones can take if they are seeking to have the principal’s POA revoked.
1. Determine Whether you Have a Valid Reason for Trying to Have the Power of Attorney Revoked
You cannot have an incapacitated loved one’s power of attorney revoked without having proper grounds for doing so. By trying to have a power of attorney revoked without proper grounds, you are in effect trying to override your own loved one’s wishes regarding whom they wanted to make important decisions for them after their incapacitation.
- Was your sibling abusing a power of attorney to steal from your parent?
- Was an agent making risky investments with the principal’s money?
- Did they mismanage the principal’s assets?
All of these would qualify as valid reasons for bringing a POA revocation claim; however, disliking the agent or having a personal vendetta against them would not.
2. Confirm You Are Authorized to Override the Power of Attorney in Question
Remember: If a principal has capacity, only they have the authority to override their power of attorney.
If a principal lacks capacity, anyone who has their best interests at heart — whether that be a close family member or a longtime friend — generally has the authority to file a formal POA revocation claim.
Keep in mind that bringing a claim does not guarantee it will be granted by the court. The court will consider many factors before arriving at a decision surrounding whether to revoke the document or not.
It’s worth mentioning again that if a power of attorney is successfully revoked, a conservatorship may need to be established to protect the incapacitated principal. The reason why the court may be hesitant to revoke a POA is because it likely would result in the principal being placed under a conservatorship, which may strip them of their independence and many of their rights.
3. Consult with a Power of Attorney Lawyer
If you’re overwhelmed by the information contained in this article, imagine trying to handle the actual POA revocation process all on your own. We would not recommend it.
While working with a power of attorney lawyer may require you to invest some of your own resources, your investment is likely to pay off in the end. Not only will your lawyer handle all the tedious parts of the litigation process for you, but you’re more likely to be handed down a resolution you find favorable.
Additionally, if a principal is suffering at the hands of a bad actor agent, you may be able to stop any power of attorney abuse being perpetrated by the agent in its tracks. Furthermore, if you are successful in proving your claim, it’s possible you’ll be able to recover your attorney’s fees and costs, either from the agent themselves or from the principal’s finances.
4. Gather Evidence to Back Up Your POA Revocation Claim
To prove your claim to the court, you will need evidence to back up your claim. While the power of attorney document generally can serve as evidence, it alone may not suffice in proving your claim.
Evidence can include everything from accountings provided by the agent to interested parties to real estate deeds and appraisals of property. The type of evidence you need will be based on the specific circumstances surrounding your claim and your reasons for trying to have the power of attorney revoked.
Without having legal experience, it can be difficult to know what type of evidence you’ll need, as well as where to search for evidence. For this reason, having a lawyer in your corner can significantly streamline the evidence-gathering process.
5. File a Formal POA Revocation Claim with the Court
Once you have all the evidence you need to demonstrate to the court that an agent was misusing the authority they’d been granted under a power of attorney, you can proceed with filing a formal revocation claim with the court.
Claims must include your specific reasons for desiring revocation of the POA. These should be supported by the evidence you found. Additionally, you should list what legal remedies you are seeking. It’s likely you’ll be seeking revocation of the POA, but you may also be seeking to recover any money or property the principal lost as a result of the agent’s alleged abuse. If you are working with a power of attorney lawyer, they can handle preparing and filing the claim for you.
Once the court reviews your claim, it will set a date for the initial court hearing. You should attend this court hearing with your lawyer. At the hearing, your lawyer generally will make persuasive oral arguments to support your claim, after which point the court may move to grant or deny it, or defer its decision to a later date.
If your claim is granted, you may need to consider establishing a conservatorship to protect the former principal, particularly if they are significantly incapacitated.
Trying to revoke a POA? Our knowledgeable attorneys can help.
The process for revoking a power of attorney on behalf of a principal is not always straightforward, which is why working with a knowledgeable team of lawyers can make all the difference. Not only will the stress be taken out of the process, but you will be much more likely to be handed down the outcome you want in court.
The power of attorney lawyers at Keystone are experienced in handling all varieties of POA matters. Call us today to request a free consultation.
