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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 someone authorized to make financial and legal decisions on your behalf. The primary purpose of having a POA is to have someone ready to act on your behalf in the case that you become unexpectedly incapacitated. In an enduring POA agreement, the appointed person has the authority once you become incapable to make any financial/legal decisions you could normally make yourself. It’s often a good idea to appoint a POA before it becomes too late, because you must have testamentary capacity to appoint a POA. After a person becomes incapable, someone will have to go through the court process of becoming your committee to gain the same abilities as a POA (if one isn’t named beforehand).
As part of the POA agreement, the appointed attorney is to act in your best interests with all the decisions they make on your behalf. There is not necessarily anyone looking 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. Under certain conditions, this is allowed and can happen.
In order to change or revoke a POA agreement, you must be mentally capable of understanding the nature of the decision and the consequences it has. The only person who is able to revoke/change a POA agreement is the person who is the subject of the agreement.
By this definition, it is unclear how a person could be mentally capable of modifying the POA agreement, but not capable of managing their own financial/legal affairs. According to the Power of Attorney Act, an adult is incapable of managing their own financial/legal affairs if they cannot understand all of the following:
Comparing these two definitions with one another, it’s clear that it is possible to prove that someone is capable of understanding the nature of the revocation or modification, while not being able to understand their own financial/legal matters. It may be a fine line, but it can be clearly demonstrated depending on the case.
To make a change to the POA agreement, an amendment must be made. Essentially, an amendment is a separate document that clarifies what you wish to be changed about the original agreement. The amendment should be signed and witnessed 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 needs to be completely revoked. Usually, this follows with a new POA being appointed thereafter. To revoke a POA agreement, a notice of revocation must be written, signed and given to the person that was given POA. Once the attorney receives the notice, the POA agreement has been revoked. A notice of revocation can be a very simple document that simply states that you are revoking the POA and includes the date, the attorney’s name and your name with a signature.
It’s important to note that people can have two POAs at once, so if you’re wishing to appoint a new POA, remember that there is not a presumption of revocation of the original POA when you appoint a new one. If you do not want two attorneys or you do not think the two people you have appointed can work well together, the original POA should be revoked.
In the end, anyone who is capable of understanding the nature and 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. We can help to ensure that the proper procedures are followed so that you and your estate are handled as you wish.
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