A Power of Attorney (POA) is a powerful legal instrument that allows one person, known as the principal, to authorize another person, the “attorney-in-fact” to act on the principal’s behalf. This document can be necessary when the principal is either absent or unavailable, or is incapable of making decisions due to their own incapacity. A Power of Attorney document can relate to almost any subject, such as health care, financial or legal matters, or caring for children, and Powers of attorney can make sure that the principal’s financial, medical, or legal affairs are managed responsibly.
When to Change or Revoke a Power of Attorney Document
There comes a time when changing or revoking a Power of Attorney (POA) becomes necessary. Here are a few common situations that might necessitate such a decision:
- Unmet Expectations: If the Attorney-in-fact fails to fulfill their responsibilities as stipulated in the POA, it might be time to revisit the agreement. This could range from a lack of commitment to perform tasks to outright disregarding the principal’s wishes.
- Attorney-in-fact Misconduct: Misconduct by the Attorney-in-fact is a serious matter. If the Attorney-in-fact is found to be misusing their powers, for example, misappropriating the principal’s funds or making decisions contrary to the principal’s interest, immediate revocation of the POA is often warranted.
- Attorney-in-fact’s Inability or Unwillingness: The Attorney-in-fact may become unwilling or unable to carry out their duties. This could be due to many reasons, including health issues, personal problems, or relocation to a distant place.
- Change in Principal-Attorney-in-fact Relationship: Relationships evolve, sometimes not for the better. If the trust between the principal and the Attorney-in-fact erodes or there is a significant change in their relationship (e.g., divorce, falling out), it might be time to change or cancel the POA. Change in relationship is the single biggest reason for changing or revoking a POA that we see in our law practice.
Revocation or cancellation of the POA is often the most straightforward solution in these circumstances.
However, revocation is not the only solution. Either instead of, or in addition to revocation, it is usually advisable to make a new Power of Attorney document to replace the old one that you wish to revoke. In our experience, making a new Power of Attorney is far more common than simply signing a revocation document. Please keep in mind, if you plan to sign a new Power of Attorney document, doing so does not automatically revoke the old Power of Attorney – your new Power of Attorney document will need to contain wording that specifically revokes the previous Power of Attorney, or generally revokes all previous Power of Attorney documents.
We generally do not “Amend” Power of Attorney documents. In our opinion, it is simpler, cheaper, and easier to simply make a new document if you want changes.
Another option that comes up occasionally is to simply limit or reduce the powers available to the Attorney-in-fact, if the Principal becomes uncomfortable with the scope of powers or authorities held by the Attorney-in-fact. This would require making a new Power of Attorney document, including a provision revoking any previous Powers(s) of Attorney.
Any actions taken by the Attorney-in-fact should always be made in the best interest of the principal, and not merely benefitting the Attorney-in-fact. If in doubt, professional advice from an Attorney should be sought in making any such decisions.
How to Revoke a Power of Attorney
Should you decide to proceed with revocation, the process isn’t overly complicated, but does require some attention to detail:
- There are various ways to revoke a power of attorney document, including tearing it up, shredding it, burning it, or what is probably the most sensible way – signing a revocation document.
- So therefore, in many cases, we will create and sign a Revocation document that specifically revokes the previous Power of Attorney that you want revoked. In Missouri, we recommend it should be signed and notarized.
- Additionally, you should destroy the previous Power of Attorney, and provide a copy of the revocation to anyone who had or may have a copy of the old Power of Attorney that you have revoked, so that they know it has been revoked. This could include banks, financial institutions, or health care providers, or persons you previously nominated as Attorney-in-fact.
- Consider making a new Power of Attorney to replace the old one you have revoked.
- It is possible to make a new Power of Attorney and revoke the old Power of Attorney at the same time, by including a statement or clause in your new Power of Attorney that revokes the old Power of Attorney.
The Role Courts Can Play in Revoking POA
While the process of canceling or changing a Power of Attorney (POA) is typically initiated by the principal, there are situations where a court may step in to revoke or modify a POA.
Courts can intervene when credible evidence shows the Attorney-in-fact is misusing their powers or not acting in the principal’s best interest. This could involve financial misappropriation, making decisions contrary to the principal’s wishes, or any form of abuse related to the powers being exercised by the Attorney-in-fact.
Courts may protect the principal if the principal’s well-being is at risk due to the Attorney-in-fact’s actions or negligence. This could involve removing the Attorney-in-fact, appointing a Guardian or Conservator, or taking other protective measures as the situation may require.
Aside from these scenarios, there are also circumstances where family members or close associates of the principal might challenge the Attorney-in-fact’s authority in court. Family members can raise concerns over the Attorney-in-fact’s conduct if they suspect misuse of power. This could involve suspicions of financial impropriety, neglect, or decisions not in line with the principal’s wishes.
Sometimes, the validity of the POA itself might be questioned by family members. This could arise if there are concerns that the principal did not have the requisite mental capacity when the POA was signed or if undue influence or coercion was involved; or it could involve other technical issues in the documents, such as ambiguities, mistakes, or lack of notarization, etc.
In such cases, the court will conduct a thorough review of the claims made, the evidence presented, and any other relevant factors to arrive at a decision that ultimately serves the principal’s best interest.
Considerations for Those with a Diminished Capacity
Revoking a Power of Attorney (POA) becomes significantly more complicated when the principal’s mental capacity is questioned.
Theoretically, a mentally fit principal can revoke a POA at any time. However, revocation becomes much more complicated if the principal is mentally unfit. This is because, legally, a person needs to be of sound mind to make significant legal decisions, or sign any sort of legal document, including the revocation of a POA. The Principal must have capacity to have a basic understanding of what they are signing, and the implications of the document.
The judgment of mental capacity is often made by a professional, usually a physician or a psychiatrist, who is trained to evaluate cognitive function. Certain legal standards must be met for a person to be deemed incapacitated, such as the inability to understand the information relevant to make a decision, or appreciate the reasonably foreseeable consequences of a decision (or lack of a decision).
Just remember, a person must have the required mental capacity to make legal decisions or sign legal documents, whether that be signing a Power of Attorney, or a Revocation of one.
The Role of Your Attorney in POA Change or Revocation
Legal professionals are invaluable in guiding individuals through revoking or changing a Power of Attorney (POA). At Piatchek Law Firm, we can provide expert guidance throughout either process:
- Crafting a legally sound and clear revocation document. We can advise you through this process, and create a legally binding document which correctly identifies the parties involved, references the original POA, and unambiguously states the intention to revoke the powers previously granted.
- We can also advise you regarding giving notice to the previous Attorney-in-fact and other relevant parties.
- The process of revoking a POA can have numerous legal implications, and we can provide necessary advice and guidance, helping you navigate these complexities and safeguarding the principal’s best interests.
Our experienced Estate Planning Attorneys at Piatchek Law Firm can help you navigate these matters and make sure they are done correctly, providing peace of mind to all involved.
Protecting Interests The Right Way
Deciding to revoke a power of attorney can have some challenges, but it is often not complicated. Being well-informed about the process can make it run more smoothly. Remembering the importance of acting in the principal’s best interests, and acting promptly if you suspect the Attorney-in-fact is not doing so, is crucial.
Legal complexities may arise during the process, especially in cases involving the mental incapacity of the principal. In such scenarios, guidance from our experienced attorneys at The Piatchek Law Firm can prove invaluable.