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As part of proactive estate planning, it is often a good idea to appoint a power of attorney (POA). A POA is authorized to make financial and legal decisions on your behalf. The primary purpose is to have someone ready to act on your behalf if you are unable to. In an enduring POA agreement, the appointed person has authority, once you become incapable, to make any financial/legal decisions you could normally make yourself. It’s a good idea to appoint a POA before it becomes too late to do so. After a person becomes incapable, someone will have to apply to become their committee to make decisions on their behalf.
The appointed attorney must act in your best interests with all the decisions they make on your behalf. There is not necessarily anyone watching over the POA, ensuring that they’re making the best decisions for you. Sometimes, the POA isn’t making the “right” decisions and you may wish to change or revoke the POA agreement.
In order to change or revoke a POA agreement, you must be mentally capable of understanding the nature of the decision. The only person who is able to revoke the agreement is the person who is the subject of the agreement.
Some people wonder how a person could be mentally capable of modifying the agreement, but not capable of managing their own financial affairs. Under the Power of Attorney Act, an adult is incapable of managing their affairs if they cannot understand all of the following:
It’s possible to prove someone is capable of understanding a POA revocation without being able to manage their own affairs.
You must draft an amendment to make a change to a POA agreement. An amendment is a separate document that clarifies what you wish to be changed from the original agreement. You must sign and witness the amendment to ensure validity. The changes are immediately effective and the appointed POA must adhere to the new changes by law. If they don’t want to or feel that they are not able to, they must resign immediately. The appointed attorney doesn’t have any say in the changes and has no authority to make changes to the agreement.
In some cases, the original POA agreement is outdated and should be revoked. Usually, a new POA is appointed thereafter. To revoke a POA agreement, you must give the appointee a signed notice. A notice of revocation can be a very simple document stating you are revoking the POA. It should include the date, the attorney’s name and your name with a signature.
Further, it’s important to know people can have two POAs at once. If you appoint a new POA, there is no presumption of revocation of the original POA. If you do not want two attorneys, you should remember to revoke the original agreement.
Anyone who is capable of understanding the consequences of their choice is able to modify or revoke a POA agreement. The person doesn’t need to provide any reasoning for their decision to revoke or modify. The appointed attorney won’t be able to decline a proposed change or revocation and must adhere to the ruling. The only other option available to the attorney is to resign.
If you want to revoke or modify your power of attorney agreement, contact an experienced estate lawyer today.