The power of attorney is incredibly vital when it comes to planning your life and eventually the end of your life. Every state will accept a power of attorney but the rules around the power of attorney will differ from state to state.
At its very basic, a power of attorney is a document that gives a person or persons power to make decisions on your behalf, becoming what is known as your “agent”. This agent may have full decision making powers, or it might be restrictive to certain things like sale of a property etc. The power of attorney may be effective straight away or it may be due to an event such as a person’s terminal illness, disability or death.
A lot of advantages exist with a power of attorney, but it can also bring about arguments and disputes when someone wants to make full decisions for someone – meaning family members might get involved. Luckily, there are things in place for when these occurrences arise or when certain obligations from others have failed to have been met.
What Are The Types Of Power Of Attorney?
There are two major types of power of attorney in the United States. They are:
Medical POA: This power of attorney allows a person who has been allocated as agent, to make decisions on behalf of the person in the event of incapacitation, meaning the person can not make their own decisions.
Financial POA: These fall into two categories which are durable power of attorney and general power of attorney. In these instances, the agent is allowed to take control of the person’s personal and financial affairs prior to and during any mental and/or physical debilitation.
You may have noticed, if you have done some research into power of attorney, that certain phrases continue to crop up with it. These might include:
Durable/Non-Durable: Every power of attorney will fall into one of these categories. Durable basically means that the POA remains intact after the person (principle) has become legally incapable of making their own decisions. Non-durable will cease if a person has become mentally incapable. Generally, a power of attorney will be durable unless there is a reason for it not to be.
Limited/General: General power of attorney is probably the most issued, which gives the agent a large range of financial power for the principal. A limited power of attorney, as per the name, will only have limited powers for the principal – such as purchases of property etc.
Springing/Immediate: An immediate power of attorney will come into effect straight away, whereas springing (durable) will come into effect when the principal is no longer capable of making decisions for themselves.
A Power Of Attorney’s Rights
A power of attorney will give an agent some rights to make decisions, but there are also some limitations to their power.
Whilst an agent is allowed to receive reimbursements for doing things on the principal’s behalf that make them financially in negativity, the agent is forbidden from earning or enriching themselves through the principal.
An agent is not allowed to change the principal’s will, make decisions about the principal after they die (unless in certain circumstances), make decisions that negatively impact the principal or exchange their power of attorney to another person.
How Do You Remove Someone’s Power Of Attorney?
First, the person (or principle) who gave somebody and appointed somebody the power of attorney is the initial person who can revoke this. However, it’s not normally that simple.
It is a formality that the principle must send a written notice that they have revoked a person’s power of attorney and outlining why they are doing so. It is then normal to have to sign a cancellation – some places require a further step of the document being notarized.
When this power of attorney has been revoked, you should destroy all prior documentation of power of attorney or put it with the revocation notice. Nobody is allowed to use the cancelled power of attorney as authority.
The process is much more complicated if the principal is mentally or physically unable to make these sorts of decisions for themselves. So, what do you do in these circumstances?
Further Steps To Withdraw A Person’s Power Of Attorney
You can try following these steps:
Speak with the principal: if they can make a decision for themselves, they’re well within their rights to do so.
Speak with the appointed agent: you can try and make contact with the person listed as the agent and request that they remove themselves by stepping down. However, if they choose not to and there are no further alternative agents listed, it may have to become a matter for the courts.
Going to court: taking the matter to court, you are effectively asking (with your legal representative) that the person listed as agent should have their power of attorney revoked. You can also ask for their powers to be suspended, pending the court review.
Outcome: if your case does go further, the judge can make either the decision that the agent isn’t appropriate and must be removed from the power of attorney, or they may decide that you must bring forward more evidence, in order to prove the agent’s ineptitude to being appropriate.
The Things To Remember
Power of attorney is very important and it’s crucial to know, if we ever are unfortunately in a position where we need to override a POA, that we know how to. The basics are that the principal has the power to override and revoke a POA until such time as they cannot do so, due to their mind or physical incapacity. In this instance, if a dispute arises – it may be time to visit an attorney and then the court.