A power of attorney is a legal instrument that enables someone take decisions on your behalf, especially decisions that have financial and legal implications. The question of who can override a power of attorney usually arises when it becomes obvious that the one granted the power is abusing it.
In this article, we discuss what a power of attorney entails, who can revoke it and what steps must be taken to override a power of attorney.
What is a Power of attorney?
A power of attorney, is a legal tool which a person who is of sound mind and on his own accord, grants the right for another to act on his behalf. A power of attorney may be granted for a specific transaction, limited to a series of transactions or granted in general.
The person granted the power of attorney is known as attorney-in-fact whereas the one granting the power is known as the principal. The principal is required to be mentally sound at the time of granting the power.
Where a power of attorney is granted in full, the attorney-in-fact has full power to decide on behalf of the principal in a myriad of aspects. The type of power of attorney granted will depend on the wording of the legal document granting the power to the attorney-in-fact.
Examples of decisions that an attorney-in-fact can take on behalf of the principal among others, include:
- Signing deeds in property sale
- Acquiring loans and complete other financial transactions on principal’s behalf
- Taking insurance and medical decisions in tandem with the wishes of the principal.
What are the 3 types of power of attorney?
There are 3 types of POA, each granting the attorney-in-fact rights and powers as stipulated in the legal document. The three types are:
1. General or Limited
A power of attorney may be general or limited. A general POA grants the attorney power to decide on wide ranging aspects of the principal’s business, financial and sometimes personal life while a limited POA only grants control over decisions regarding specific transactions or aspects of the principal’s life.
2. Immediate or Delayed
An immediate POA is one that takes effect immediately after the legal document is signed. In contrast, a delayed or springing POA only comes into effect at a specified later date after the power of attorney has been granted.
3. Durable or Non-Durable
A POA is either durable or non-durable. A durable POA is one that will still be in effect in the event the principal becomes mentally unsound. A non-durable POA is one that is automatically revoked when the principal loses mental capability.
Who can override a power of attorney?
While a power of attorney is a great way to have capable people represent you especially when you’re indisposed or for whatever reason, it can also be the case that such people may take advantage of the power given them to your detriment. In such a case or at will, you may want to override the power of attorney given them.
There are three bodies that can override a power of attorney depending on the circumstances of the principal. They are:
1. The Principal
The principal, with or without a reason can override or revoke a power of attorney at anytime given that they are of sound mind. The decision to override the POA can be via verbal communication to the attorney or through a legal document announcing the revocation. This document must be served to all relevant institutions with the POA on file so they’re aware of the revocation.
2. The attorney
The person granted the power of attorney may decide at will or in a willful honor of a request, to revoke the POA granted them. They only need to communicate their decision verbally to the principal or through a legal document announcing the decision.
3. The court
In several circumstances, a court of competent jurisdiction can override or revoke a power of attorney. The circumstances may include:
- Decisions of attorney not in the interest of principal – If family or close relatives determine that the decisions of an attorney-in-fact is detrimental to a mentally incapacitated principal, a case may be brought before a court for determination and possible revocation of the POA. If the court finds the accusations to hold substance, it has the power to override the power of attorney. In such a case, the court may appoint a guardian to temporarily handle the affairs of the mentally unsound principal.
- Illegal exercise of POA – In the event a POA is non-durable, it is automatically revoked when principal is no longer of sound mind. Suppose an attorney continues to decide on the incapacitated principal’s behalf after such a time, a court can override the decisions and deem them null and void when the matter is brought to it’s attention. Again, the court bears the responsibility of appointing a guardian for such a principal.
- Invalid POA – A principal must be of sound mind while granting a POA. If it is determined that the POA was granted by a person of unsound mind, the document is legally invalid. A court can therefore override such power of attorney.
Guardianship refers to power granted to someone appointed by a court of competent jurisdiction to make decisions on behalf of another who due to one reason or the other is mentally incapable of taking responsible decisions. The person appointed by the court is known as the guardian while the person on whose behalf the guardian acts is known as the ward.
Power of attorney vs guardianship
From the definitions above, the distinction between a power of attorney vs guardianship is the fact that a guardian is appointed by the court to handle the affairs of a mentally incapacitated person while a power of attorney is granted by a person of sound mind at the time of issuance.
A guardian is usually authorized to take decisions of legal, financial, and medical nature for their wards. A guardian may or may not need to consult the appointing court to take decisions for the ward depending on the terms of the guardianship.
Due to the fact that a guardian basically take away the freedoms of the ward, state laws require that guardianship be imposed only when alternatives such as power of attorney doesn’t suffice. Guardianships are subject to periodic review by the court.
Does next of kin override power of attorney?
No, a next of kin is a person who is to be contacted in case of emergency and has no legal powers to conduct the business of another. The next of Kin therefor has no power to decide on behalf of the principal person neither does it override a valid power of attorney.
However, if a person is the next of kin and also a POA for the principal, then they can act in both positions in the best interest of the principal.
Does guardianship override power of attorney?
No, unless a power of attorney is revoked by the court, an order of guardianship will not invalidate a power of attorney, but both will run the affairs of the principal to the limitations of the powers granted them.
In a case where the court revokes the POA for not acting in the interest of the principal, then the court may grant the guardian, powers to perform the functions the POA used to perform.
Power of attorney is a great way to delegate some or all decisions to another especially when they’re more capable in the subject than you or you’re indisposed. When it comes to who can override a power of attorney, the first person with the power to do so is the principal and it can be achieved by simply communicating the decision of revocation, preferably in writing.
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