A power of attorney is a highly jurisdictional area of the law. The mechanics for assigning and revoking a power of attorney depend entirely your specific state. However, regardless of jurisdiction, unless you have been found legally incapacitated, you are free to revoke power of attorney at any time. Typically you will do so by notifying your agent in writing, although in some areas even verbal notice will do. Here’s what you need to know.
A financial advisor can help you create an estate plan to preserve assets for your family.
What Is Power of Attorney?
Power of attorney is an assignment of agency. It allows someone to act in your place and on your behalf for the purposes of making legally binding decisions. Someone with a power of attorney can sign contracts, file financial documents, make medical decisions and otherwise act with your own authority in the eyes of the law.
When your power of attorney agent acts, so long as they are acting within the authority you gave them, it is as binding as if you had made those decisions yourself. This grant can allow someone to access your bank accounts and credit, for example, or work with the government on case files in your name. For this reason it’s important to be very specific about the scope of authority you are giving someone when you sign a power of attorney form.
As an example, it’s common to assign your accountant power of attorney for the purposes of filing your taxes. This allows them to interact with the IRS on your behalf, accessing and filing documents that otherwise would require your signature. But, your accountant could not use the power of attorney to buy something in your name. Their grant of authority extends to signing your 1040, not a bank loan.
Typically there are two kinds of power of attorney: Medical and financial. A medical power of attorney allows someone to make medical decisions on your behalf while you are incapacitated or otherwise unable to do so. A financial power of attorney allows someone to sign and file documents on your behalf if you are unavailable or, again, incapacitated.
When you assign someone power of attorney, they cannot contradict or override your decisions. For example, say that you assign a medical power of attorney. If they give the doctor contradictory instructions to your own, the doctor will respect your wishes. Your agent’s authority does not supersede your own.
How Can You Revoke Power of Attorney?
Except as discussed below, you can revoke power of attorney at any time for any reason. Your agent cannot dispute or override this decision. This is true whether you have a current, acting agent or have named someone to act on your behalf in the future (typically known as either a “springing” or a “durable” power of attorney).
Once you revoke a power of attorney, any actions that your agent takes have no legally binding effect. However you cannot retroactively revoke power of attorney. Your agent can still act on your behalf until you complete any required process; merely making the decision is not enough. For this reason it’s extremely important to act immediately once you decide to revoke a power of attorney, and you should generally do so as soon as you no longer need an agent.
Indeed, it’s often wise to eliminate the need for revocation altogether by specifying the limits and end of a power of attorney in the written grant itself. You can, for example, state that “this grant ends at noon on December 12.” If you do so, you can revoke power of attorney any time before December 12 but it will end automatically at the scheduled date and time.
The process to revoke power of attorney varies from state to state. In many, if not most states, it is sufficient to notify your agent in writing that you have revoked their power of attorney. You should include the date and time of this revocation, to ensure that there is no confusion.
Some states require you to notarize the revocation, so that third parties cannot falsify this document. In other states, you may have recorded your power of attorney with the register of deeds so that your agent can act on your behalf for property transactions. In that case, you must notify the register in writing and remove the grant document.
It is also common for states to allow you to revoke power of attorney on the grant document itself. In this case, you would write directly on the power of attorney document that it had been cancelled and the date and time. Again, you need to transmit this to your agent for it to have effect.
In all cases, you should send copies of the revocation to relevant third parties such as your bank and accountants. This isn’t legally necessary, but it can help prevent disputes or unwanted transactions.
A power of attorney can also expire under certain circumstances. This grant always ends at death, when your legal authority is transferred to your estate, and it also will typically end if you are incapacitated. Finally, power of attorney ends if your agent dies or is declared incapacitated. In that case, your legal authority is transferred back to you.
When Can You Not Revoke Power of Attorney
As discussed above, under ordinary circumstances you are free to revoke power of attorney at will. The one exception to this rule is if you are legally unable to make your own decisions. This can happen under two circumstances.
For short periods of time, a doctor may declare you medically incapacitated. A doctor can do this if you are either unconscious or too impaired to make your own decisions. Under these circumstances, they can allow a power of attorney to make immediate medical decisions on your behalf. That said, doctors are typically reluctant to do this except in cases when a patient is unconscious or otherwise entirely non-responsive.
For long periods of time, a court can find you legally incapacitated. This means that, after hearing arguments and evidence, a judge has ruled that you cannot understand the nature and quality of your own actions. In this case you typically have neither legal culpability nor authority for your own actions going forward.
A power of attorney will then act on your behalf in all financial, legal and property matters until and unless a court rescinds this finding. You cannot override this decision on your own, but instead must challenge the incapacitation in court.
Bottom Line
When you voluntarily assign someone power of attorney you are free to revoke that authority at any time. The process for doing so is different from state to state, but typically you only need to notify your agent in writing.
Power of Attorney Management Tips
- While many people will never need a legal or financial agent, medical power of attorney can be an essential tool for long-term planning. If you suffer a medical emergency, it’s important for the hospital to know who will make decisions on your behalf.
- A financial advisor can help you build a comprehensive retirement plan. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
Photo credit: ©iStock.com/kate_sept2004, ©iStock.com/ProfessionalStudioImages, ©iStock.com/ljubaphoto