If you can’t handle your affairs, you appoint someone to represent you and prepare or sign a power of attorney paperwork. This legal document is crucial for estate planning. Choosing the ideal candidate to grant such authority is difficult as we can’t predict a person’s behavior until they have experienced that circumstance. Usually, people have doubt, “what if things don’t go on well and who can override a power of attorney?”
When a principal appoints an agent, that agent should handle the role responsibly. They have a fiduciary duty to act in the principal’s best interests. What occurs if an agent doesn’t behave ethically or engages in self-dealing? What can loved ones and family members do if they believe a representative is acting unethically or illegally?
This write-up covers agent power he obtains from a lawful power of attorney instrument. It also explains how an agent could misuse those rights when making financial or medical choices and the legal provisions to remove an agent from the power of attorney.
Who Can Override a Power of Attorney?
As long as they are of sound mind, the person who signed the power of attorney document can revoke the agent’s authorization. They can create a new document to transfer power of attorney from one person to a different agent.
However, what if the principal is experiencing mental impairment, such as dementia, or is in a medically-induced coma? Can a family member override the power of attorney? When they suspect misuse, can they intervene to withdraw a power of attorney? The answer is YES.
Typically, to persuade a judge that an agent is not operating in the principal’s best interest, one will need the assistance of elder law or disability law counsel. Evidence of DPA abuse or negligence must be provided by the attorney.
With proof of wrongdoing, the attorney can ask the agent to stand down and hand control over to the alternative agent listed in the power of attorney paperwork. If the agent declines to do so or if there isn’t a substitute agent, a loved one must ask the court to be appointed as the person’s guardian or conservator.
What if the principal, who can be an elderly person suffering from dementia, is unaware of the abuse? Or do they still have faith in or fear the abuser? Can family members still request the revocation of the power of attorney?
Yes. The desires of the principal who has impaired mental ability can be overridden if there is evidence of abuse. However, there must be proof of the abuse of power, not just a disagreement of viewpoints.
How to Override a Power of Attorney?
A power of attorney should never be overridden haphazardly. To ascertain whether all duties were carried out exactly, a detailed study of the power of attorney agreement will be necessary. You have to hire a lawyer with experience in elder and/or disability law.
Review the paperwork with your attorney and take the following actions if you need to revoke someone’s power of attorney because of misuse or negligence:
Consult the Principal
If they are of sound mind, go over your worries with the Principal regarding the Agent. They can verbally replace or delete their Agent. Even so, it’s ideal if they complete a proper power of attorney revocation form.
Contact the agent
If the Principal does not revoke the POA, contact the agent and ask them to resign through your attorney. The Alternate Agent listed on the document will take over if the Agent declines. You will have to apply to the court for a guardian and/or conservator to look after the principal’s interest if no Alternate Agent is appointed.
Prepare for Court
You will need to appear in court if the Agent refuses to step down and a capable Principal refuses to rescind a power of attorney. While the case is pending, your attorney may ask the court to annul the power of attorney and appoint a new guardian or conservator.
If the matter goes to court, be aware that you can be required to:
- Persuade a judge to terminate the agent.
- Substantiate the need to reject the principal’s requests owing to mental impairment
The fiduciary duty of an agent:
An agent, sometimes known as an attorney-in-fact, is a person who has the power to make decisions. Although they have power of attorney, they are not a legal representative. The agent must represent the principal and carry out the principal’s instructions while generally acting in the principal’s best interests. It’s known as a fiduciary duty.
Documents granting a limited power of attorney allow agents to sign a commercial or real estate deal. A general power of attorney makes it impossible for the power of attorney to make decisions after completely understanding what the principal desires. They will need to exercise fair judgment.
At that point, issues may develop. A poor choice made by an agent could not be in the principal’s best interests. Or perhaps they cannot make decisions for themselves. Then the principal may think of exercising his overriding power of attorney.
Financial power of an agent
A financial POA grants the agent the ability to initiate financial transactions, access bank accounts, and make cheques in general or with specificity. A POA can close an account at one financial institution and start a new one.
To increase the estate of a sick person’s liquidity, they can elect to sell assets. When it comes to choosing how to pay for medical treatment that may be the best option, they can offer to sell a home or even a car.
However, the agent also has the option to sell the house and use the proceeds to access those funds. These funds might be “invested” by them in their own company. They might get a great deal on the car.
Abuse of a durable power of attorney (DPA) includes theft, embezzlement, fraud, and forgery.
A crime happens when a POA misuses durable power of attorney. States are becoming more aware of DPA abuse of seniors. However, it requires family members to alert the police to the situation. The weaker person frequently lacks the means and the skills to defend himself.
The medical power of attorney:
An agent may make medical decisions on behalf of a person incapable of making a decision. However, it isn’t always the case. Ideally, the person has provided instructions in a living will or advance directive. Sometimes the agent must act per what they think the principal would have preferred.
Making decisions that affect one’s life or death in a crisis is quite challenging. Sometimes an agent will go against the principal’s expressed intentions if they think it’s in the person’s best interests given the circumstances. On rare occasions, an agent may assess their financial interests while choosing a patient’s end-of-life care or at least that’s what the rest of the family believes.
Frequently Asked Questions:
Does power of attorney takes away the principal’s rights on finances and making health-related decisions?
No. POA doesn’t take away the principal’s rights to make decisions related to finance and health emergencies.
What does a power of attorney restrict an agent?
It prevents him from changing your will. He can’t make another person your power of attorney.
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A power of attorney is a person who has the right to carry out the principal’s instructions. A durable power of attorney continues even after the death of the principal. He makes financial and health decisions on behalf of the principal. So people appointing the power of attorney doubt who can override a medical and financial power of an attorney.
A principal or any family member suspicious of the misuse of power of attorney can file a case in court to terminate the agent and appoint a new one to take care of the principal’s affairs.