As we have entered 2023, we've reviewed some common roles in estate planning documents: executors (for wills – only effective when you pass) and agents (for powers of attorney – while you're living but can't act for yourself). Today, we'll finish out January with a review of when an agent named on a power of attorney can be overridden. A power of attorney (POA) is a legal agreement that gives a person (agent) the ability to act on behalf of another person (principal). A common question is under what circumstances a person (usually the principal) can override the POA.
Generally, POAs can be overridden. However, the “who” and “how” depends on whether the principal is of sound mind.
First and foremost, the principal can override a POA at any time as long as they are of sound mind. The term “sound mind” refers to the state of mind and memory a person has at the time in question. So, as principal, you could override a POA if you have sufficient mental capacity to understand what you are doing.
What Is Revocation?
The act of overriding a POA is called revocation. Every state’s laws specify how revocation can occur, but typically, it is required to be in writing and must clearly express the principal’s intention to revoke a specific POA.
As the principal, you can revoke a POA in many different ways, such as:
- Executing a new POA, which states that you are revoking a prior POA
- Putting provisions in a POA that state it will terminate or become ineffective under certain circumstances, such as your incapacity
- Sending a written notice of the revocation to the agent and any monitor, secondary agent, successor agent, and any other relevant parties
- A POA can also naturally terminate upon the conclusion of a specific event, such as in a situation where the principal had entered into a POA solely to close a particular real estate transaction.
Again, please consult your state laws and the wording of your existing POA concerning any required steps for revoking the POA in question.
Overriding a POA Through the Court
A second way a POA can be overridden is through court intervention. For example, if you, as an agent, are no longer of sound mind, a court can remove you for acting improperly or acting in a manner that abuses your responsibilities as set forth in the POA.
If family members or friends are concerned about this situation, they can seek to have you removed as well. They would have to file a formal request with the applicable court to remove an agent and replace them with a new one. This request is made pursuant to the applicable state’s law governing POAs.
A third option is when a concerned party seeks guardianship or conservatorship of the principal through the local court system. If a guardian or conservator is subsequently appointed, they can then request the termination of a particular agent’s authority.
Can Your Agent Refuse to Fulfill Their Duties?
An agent can in fact decline to fulfill their duties. When choosing an agent under a POA, it is best to have discussed the responsibilities with of the role before appointing them so that you can do your best to avoid such a situation.
Even if your agent had agreed to act in this role, they can still resign after they have been appointed. This is one reason it may be a good idea to consider naming a successor agent.
Linville Law Can Help
If you have questions about revoking a North Carolina POA or creating a new POA that overrides a prior one, Linville Law Office, PLLC is here to help. Having a current POA is always advised as part of a healthy estate plan. Further, if you are named as an agent on a POA and have questions about your role, we can assist with that, as well. We are conveniently located in south Charlotte for in-office or virtual visits.