28 Feb How to Remove Someone’s Power of Attorney Privileges
How to Remove Someone’s Power of Attorney Privileges
By: Barry E. Haimo, Esq.
February 28, 2019
Though a power of attorney document can be relatively succinct and quite simple to execute, it is actually a very important – and powerful – estate planning tool. A signed POA appoints a person – an attorney-in-fact or agent – to act upon behalf of the person executing the POA document when he or she is unable to do so alone.
There are generally four ways these privileges may be granted – through a Limited Power of Attorney (which gives an agent the power to act for a very limited purpose), a General POA (usually implemented when the principal is competent but needs ongoing help managing your affairs), a Durable Power of Attorney (either limited or general in scope, but extends beyond incapacitation), or a Springing POA (one effective only in the event the principal becomes incapacitated).
Due to the powerful nature of POA privileges, unfortunately situations arise in which it is necessary to remove them from an appointed part. In this post we cover the four ways this can be done.
Death. Simply stated, every power of attorney is automatically terminated upon the principal’s death. The only exceptions made are typically in regard to tying up loose ends such as paying out final bills and taking care of funeral arrangements.
Termination date. When the original POA was drawn up, principals may include an exact date and time for termination of POA privileges. Many times, the termination date is not included in the document, which makes it “durable’ or valid indefinitely.
Usual reasons someone includes a termination date is if the POA is meant to cover responsibilities while the principal is out of the country for a finite period of time (when a member of the military is deployed, for instance) or will otherwise be unavailable for a while.
Revocation. The principal of a power of attorney can revoke it at any time as long as he or she is competent at the time of revocation, and can do so in two ways:
- Verbal revocation: If you tell the attorney-in-fact out loud and in front of witnesses that you no longer wish for them to retain power of attorney privileges over your property and/or affairs while of sound mind, the POA is no longer valid. Depending on the circumstances, however, simply verbalizing it leaves the matter open to question and interpretation.
- Written revocation: In order to avoid any issues, executing a written revocation identifying the POA and sending it to your agent is by far the better option. It should be signed by you in front of a notary public and delivered to the attorney-in-fact – plus any third parties with whom your agent has been in contact on your behalf (your bank, doctors, nursing facility, etc.).
If you’d like to revoke your agent’s privileges immediately, you can verbally do so and then follow up with the paperwork afterward. But it is not recommended to wait on the written revocation.
Contest the POA. When you are not the principal of a power of attorney, but a third party needing to challenge a POA on behalf of a principal who is not competent and therefore cannot revoke it, you can contest it by following these steps:
- Review the POA document for any grounds to challenge its validity. In Florida, it must be signed in the presence of two witnesses in order to authenticate it, but need not be sealed, acknowledged, or recorded in order to be valid. And only in regard to property held in trust must the delivery of the release be necessary to make it valid.
- Identify reasons you suspect the current attorney-in-fact should have his privileges removed. An agent retains legal authority over someone else’s finances and/or medical care decisions. He is also a fiduciary, held to the highest duty of care known to the law. He or she must act strictly in the best interests of the principal, and manage the principal’s affairs with reasonable care.
- File a petition with the branch of the state district court of jurisdiction over the principal’s residence, seeking judicial revocation of the POA and alleging your grounds for doing so.
- Submit a discovery request to the agent’s attorney and any other concerned party for documentary evidence to support your grounds for revocation. Whatever your reasons, ask for the documents supporting them – financial transactions, medical records, etc. If the recipient of your request refuses to cooperate, ask the court to issue an order to produce the records you seek.
- Subpoena any witnesses who might provide favorable testimony – bank officer, doctor, etc.
- Attend the hearing and present your case. If you win, the court will issue an order revoking the POA.
Finally, if you as a third party don’t necessarily feel all privileges should be removed from the attorney-in-fact, you may follow the same process above, but instead of revoking the POA, you can request to be appointed as the principal’s guardian. This will effectively limit POA privileges such that the agent cannot perform any acts on behalf of the principal without your consent.
Barry E. Haimo, Esq.
Strategic Planning With Purpose®
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