Wondering who can override a power of attorney? We cover everything you need to know about who can override a POA and when.
A power of attorney is a document that allows someone else to act on the principal’s behalf.
It is often part of a comprehensive estate plan, as one of its common uses is to enable someone else to help manage an elderly person’s affairs, such as an aging parent.
A power of attorney can also be used for more limited purposes, such as authorizing someone to handle financial affairs while the principal travels abroad, for example.
But in either scenario, it is a powerful legal document, and the agent--the person given the authority under the POA--has considerable authority to make binding decisions on behalf of the principal.
So who can override a POA? And in what circumstances?
The answer depends in part on the type of power of attorney at issue and, more importantly, on the circumstances surrounding the principal and their health.
In this article, we’ll explain everything you need to know about who can override a power of attorney.
A power of attorney, or POA for short, is a legal document in which someone (the "principal") gives another person (the "agent" or “attorney-in-fact”) authority to make decisions on their behalf. Despite the name, the agent does not need to be a lawyer, and people often choose trusted family members to act as their attorney-in-fact.
A power of attorney form can grant either broad or limited authority, depending on the type of power of attorney involved and the principal's wishes.
Here are some of the different types of power of attorney:
So, for example, a financial POA could authorize someone to buy or sell property, open or close bank accounts, and make other types of financial decisions. Meanwhile, a medical POA authorizes someone to make health care decisions--including potential life or death decisions--on behalf of the principal.
But regardless of the type, a power of attorney authorizes the agent to make legally binding decisions on behalf of the principal.
The main person who can override a power of attorney is the principal, the person who created the power of attorney document. But they must be of sound mind to do so.
As long as the principal is of sound mind, they can:
To change or revoke a POA, the principal typically must do so in writing. And it is probably a good idea to notify any persons or institutions with whom the agent interacted about the change, such as a bank or other financial institutions.
It is also worth noting that a power of attorney document does not prevent the principal from making decisions on their own behalf assuming, they are mentally fit to do so. Unlike guardianship, a principal does not lose the ability to make their own decisions when they create a POA. They merely authorize someone else to also act on their behalf. (And the same could be said about a POA vs conservatorship).
And as long as the principal is of sound mind, they can revoke their power of attorney, change agents, or create a new POA.
But if a principal becomes incapacitated and a durable power of attorney is in place, a principal cannot override or revoke the POA document. This is for the same reason that a person cannot create a power of attorney once they have become incapacitated, as a person needs to be of sound mind to create and execute legal documents.
So, let’s say that a principal is either incapacitated or abroad, such as on military duty. Can a family member override a POA?
Yes, a family member could override a power of attorney in certain circumstances, but they cannot do so simply because they disagree with decisions made by the agent.
A POA is a powerful document that can grant the agent broad legal authority to make crucial decisions on behalf of the principal. And in creating a POA, a principal makes the decision to authorize a particular person (or persons) to make decisions on their behalf.
Agents have a fiduciary duty to act in the principal’s best interest, but absent fraud or abuse of their authority, the fact a principal authorized a particular agent to act on their behalf will not be disregarded lightly.
Thus, a family member could challenge a power of attorney in certain circumstances, but not simply because they disagree with decisions the agent is making. Nor can they override those decisions just because they have a different view of what would have been the principal's wishes.
Examples of circumstances in which a family member could challenge an agent’s authority under a power of attorney include if:
The first two scenarios are fairly straightforward – the principal empowered the agent to act in their best interests in certain circumstances, either broad or limited depending on the type of POA. Anything that conflicts with that grant of authority is outside the scope of the power of attorney and abuse of power of attorney.
So, for instance, if the agent is taking advantage of the principal or acting in their own interests, they would be violating their fiduciary duty. Or if an agent under a financial POA tried to make medical decisions for the principal, that would exceed the limited power they were granted.
Meanwhile, while much of the discussion around powers of attorney centers around whether or not a principal is fit to make their own decisions, it is equally important that an agent has the requisite mental capacity to fulfill their duties.
Thus, if an agent becomes incapacitated or otherwise lacks the mental capacity to make decisions for the principal, a POA could be revoked.
If any of these scenarios apply, they could be grounds to override a power of attorney.
Should family members or other interested parties decide they should act, there are certain legal steps that must be taken. The process of overriding a POA can be complex, so it can be crucial to seek legal advice from an experienced elder law attorney or estate planning attorney before taking action.
As preliminary steps, it is worth trying to speak with the principal and the agent. Remember, if the principal has the mental capacity, the easiest solution is typically to have them revoke the power of attorney document.
If the principal is unwilling or they lack the requisite mental capacity to revoke the POA, then it often makes sense to speak with the agent. And this step can be particularly worthwhile considering that conflicts over POAs often pit family members against other family members.
If the agent agrees to step down, an alternate agent could step in as the attorney-in-fact, assuming that the principal named an alternate agent in their POA document.
If the agent refuses, though, the next step is to file a petition with the court. The petition must outline the reasons why the POA needs to be overridden and should provide evidence to support the request.
Keep in mind that a court will not override power of attorney lightly, though, given that the principal selected the appointed agent and chose to empower them to act in their best interests.
Additionally, if the court decides to revoke power of attorney and there is an alternate agent named in the POA document, the court could transfer power to that chosen agent. But note that a court could revoke a power of attorney and transfer guardianship to someone else, depending on the circumstances.
Again, the process of challenging a POA is complicated, and it often makes sense to seek legal advice from an experienced lawyer if you intend to challenge a POA in court.
Two other types of person worth noting: guardians and executors.
There are some key differences between guardianship and power of attorney, but for these purposes, suffice it to say that guardianship often does override the authority granted in power of attorney documents.
Meanwhile, an executor is a person named in a decedent’s will who is responsible for overseeing the probate process once that person passes. The key point here is that a POA is no longer valid after the principal's death, and instead of an agent acting on the principal’s behalf, things shift to the executor acting on behalf of the decedent’s estate.
So, who can override a power of attorney? Let's recap the main takeaways.
A principal can always revoke an agent's authority, assuming they are of sound mind. If they are not, however, they cannot override a POA, just as they would not be able to create a new POA document.
A family member, or any interested party, can also seek to override power of attorney. But they must have a sufficient basis to do so and cannot challenge an agent's authority simply because they would have made different decisions on the principal's behalf.
It often makes sense to speak with the principal and the agent before taking legal action, but if the agent refuses to relinquish their authority, the POA must be challenged in court.