We want to be in complete control of our lives. Sometimes though, there are circumstances that prevent that from happening, which is why power of attorney (POA) can prove to be a highly useful legal tool.
You probably have a general idea of what power of attorney is all about and why you may need it in the future. This article will elaborate on the topic further and clear up some common misconceptions.
In addition to better defining the POA, you can also refer to this article as you seek to learn more about possibly overriding that legal document. You’ll also find out more about why that move may even become necessary in the first place.
What Is Power of Attorney?
Let’s turn to the American Bar Association for assistance in defining this legal term.
As they noted, this legal tool provides “one or more persons the power to act on your behalf as your agent.” Agent is the term to name the person on the receiving end of the power of attorney. Sometimes, though, the person or persons in question may also be the attorney-in-fact.
Meanwhile, the person who is giving that power they regard as the principal.
The principal will be the one to decide when the POA will take effect. As the principal, you can decide to make the power valid right away, or you could indicate that it will only become effective after certain conditions are met.
You can also decide how long the effectiveness of this particular power will last. Principals can opt to only make the power valid for a limited amount of time, or they could decide to have it take effect permanently.
What Are the Types of Power of Attorney?
There are two main types of power of attorney.
The first is known as the general power of attorney.
When granting this kind of power, you are giving someone the ability to make all decisions on your behalf as long as the law deems the moves legal. Someone with this authority can make financial and health-related decisions for you, so be careful when deciding who should have it.
The other type is known as the limited power of attorney.
In contrast to the general POA, a limited POA may only apply after meeting certain conditions. If you’re trying to get your finances in order, but want to avoid having a single person responsible, you can give multiple parties limited POAs, so they handle separate accounts.
You can classify a limited POA into subtypes.
You can classify the limited POA you are giving to a person as a springing power and effectively exercise control over which actions they can perform and when they can execute them.
According to Investopedia, springing powers only start to take effect once a specific event has taken place. You can list a different condition if you prefer, but more often than not, the principal will indicate that the springing powers should only go into effect once they have become mentally incapacitated or if they have passed away.
Patients who suffer from progressive mental ailments may benefit from giving a trusted party springing powers. For example, a person with advanced dementia may no longer make reasonable decisions about their care or their assets. In that scenario, the agent with the springing powers can step in and make the right calls.
To further guide that person, the principal may create a will to follow.
Durable and Non-Durable Powers
POAs do not last forever. They often lose effectiveness once the principal becomes incapacitated in some way or if the principal dies.
POAs that work that way are non-durable.
If you want your agent to continue making decisions on your behalf even after you die or become incapacitated, you will want to give him/her durable power of attorney.
Why Do You Need Durable Power of Attorney?
Even as we do our best to watch over our health and stay in great shape, the reality is that we do not have complete control over how our bodies age. You may develop an illness that severely affects your mental capabilities, thus rendering you unable to make important decisions.
By providing someone you know with a durable POA, you can rest knowing that your wishes will continue even if you can no longer make any decisions.
You can grant someone durable POA over your finances, meaning the individual in question will be the one in charge of how to use your money. The person given the durable POA remains legally bound to follow your directives so he/she cannot take all the money unless that is what you specified.
Durable POA can also grant a person the power to make decisions regarding your long-term care. If it’s your wish to be admitted to an assisted living facility, the agent must follow that instruction.
Why You Should Consider Granting Power of Attorney to a Separate Party
As you can see, a person given POA takes on plenty of responsibility but also obtains plenty of authority. Giving that kind of power to someone should not be taken lightly since it can be exploited and abused.
Even so, one can argue that giving someone POA while you still have a sound mind is a smart move.
We know how unpredictable life can be.
Granting POA to someone makes it possible for you to prepare for the worst. By outlining your wishes clearly and choosing the right person to receive the POA, you can effectively ensure that they will handle your affairs in the manner you prefer.
Another reason to give power of attorney to someone is that the alternative can seem troublesome in comparison.
Going back to the American Bar Association, they note that assigning guardians to individuals who become incapable of handling their own affairs is common. A guardian will effectively serve as the person who makes decisions for you.
To be clear, having a guardian is not always a bad thing. However, this is still a choice most folks would like to avoid because they don’t have a direct say in who they pick.
Handing someone POA is not a move you necessarily have to make only later in life. You can also use this legal instrument to make doing business more convenient. If you’re running a business with branches all over the country and there are certain decisions you want to leave to subordinates, you can give them power of attorney.
How Is Power of Attorney Abused?
We hinted at it earlier, but the unfortunate truth is people can abuse POA.
An important thing to point out about POAs is that they are typically not monitored closely by a third party or a court. This quality of a POA makes it easy to exploit for the agent.
Abusive agents may decide to no longer follow the wishes of the individuals. Instead of executing the plan provided by their principals, the agent may opt to make financial decisions that benefit themselves.
They may even sign off on decisions that no longer keep your health in mind.
The Different Ways a Power of Attorney Can Expire
Generally speaking, POAs will expire at some point.
You can take over control when this happens by revoking the power of attorney yourself. Principals can also decide to configure a power of attorney in such a way that it will expire once they become incapacitated or die.
If you want to set a time limit on how long someone can wield power of attorney on your behalf, you can include a termination date into the document.
The court can also look at a POA document and decide to invalidate it. In cases where a spouse is the agent, the POA may become invalid if the agent and principal are divorced.
The POA may also become invalidated if the agent named is no longer capable of executing the wishes of the principal.
How to Override Power of Attorney
Unless you explicitly mentioned a termination date for the document, there’s a chance that the person you gave power to will use it for a long time. In a case where abuse is already taking place, having someone hold on that power is not ideal.
Before deciding whether to override the power of attorney, you need to know a few things.
First, you must know this is not going to be an easy ordeal. You could end up in a long, legal battle.
Next, you must also take the time to pick out the right lawyer to work with. Preferably, you should hire a lawyer who is an expert in elder and disability law.
Another thing to note here is that the POA can be invalidated by more than one person and in more than one way.
The People Who Can Override the Power of Attorney
The methods of vetoing the POA are directly linked to certain individuals. Let’s take a closer look at who they are.
By far, the easiest way to quash the POA handed to an agent is to have the principal rescind it. The only real catch is that the principal must still be of sound mind when making this decision.
If the principal agrees to remove POA from an agent, he/she can do so verbally or fill out a revocation form, according to Legal Templates.
Now things can start to get a bit tricky.
In the event that a principal is no longer of sound mind or refuses to rescind POA from an agent, you will need to approach the agent yourself. You can ask him/her to step down from the role.
If the agent does indeed step down, then the alternate agent named in the document will take his/her place. The court may get involved if there is no alternate agent designated by the principal. The court will appoint a guardian who will handle the principal’s affairs.
A Third Party
Try picturing this scenario: Your grandfather’s agent is misusing his savings, and he cannot do anything about it. You already approached the agent and asked him to step down from the role, but to no one’s surprise, he is not eager to let go of your grandfather’s money.
Clearly, nothing will change if that situation continues. You will need to act if you want to salvage what remains of your grandfather’s savings.
To do that, you will need to petition the court to revoke the power of attorney from your grandfather’s current agent and name a guardian, instead. That is easier said than done, of course.
You will first need to prove that the agent is no longer acting in the best interests of the principal. On top of that, you also must show the court that the wishes your grandfather originally authored should no longer be valid because of the new developments.
Removing power of attorney from the agent your grandfather originally named is not going to be easy, and it could take a while before the court decides. The best thing you can do here is to partner with the right lawyer. From there, he/she can gather evidence and present a compelling case to the judge.
Before deciding to move forward with those legal actions, you must know that the cost of pursuing this case can be high. Set aside a large sum of money if you want to see this case to the end.
Make sure to evaluate your options carefully before deciding to give anyone power of attorney. This decision could affect the quality of life you enjoy as a senior citizen.
We at Lakeside Manor are also dedicated to improving the quality of life of our residents. Get in touch with us today to find out how we can care for you.