Once you’ve executed a Power of Attorney, can you change it?
The answer is YES.
If you change your mind about the person you chose to make decisions for you under a durable power of attorney, you can change it. In order to make changes to your Power of Attorney, however, you must have Legal Mental Capacity. If there is any question in regards to mental capacity, it is essential that a doctor’s evaluation be done prior to making any changes to Estate Planning Documents such as a DPOA.
Assuming you have capacity, If you would like to replace the person on your DPOA, there is a specific legal protocol that you must follow.
Step 1: Draft a New Durable Power of Attorney with a Qualified, Experienced Estate Planning Attorney
Drafting your Power of Attorney with the representation of an attorney not only ensures that your documents will be legally valid, they will be more likely to hold up in a Court of Law. I recently handled a case in which a daughter was given Power of Attorney by her mother. They executed the document with a Document Preparer, reasoning that it was more affordable. After the mother died, her sons claimed the mother did not understand what she was signing and had made a “mistake.” This would be much more difficult to do if the mother had retained an attorney to execute the documents on her behalf. While anything can be contested later, it is significantly harder to do so when a party was represented by an attorney.
Step 2: Revoke the Previous Power of Attorney
A new Durable Power of Attorney revokes any prior Power of Attorney documents. Nevertheless, you want to make sure that your new document states that any and all prior documents are being revoked. Your prior attorney-in-fact should be notified that the Durable Power of Attorney naming them has been revoked. In situations where you have named a child, for example, and that child is not aware they were named, it may not be necessary to notify them. Nevertheless, check with your attorney to ensure all proper notifications are sent out.
If any agencies or institutions have a copy of your prior Power of Attorney, a copy of the new power of attorney should be sent to them. Business, organizations, and persons not knowledgeable about a revocation cannot be held legally liable for any actions taken based on the Power of Attorney they possess.
Always consult an Estate Planning attorney for help in drafting a new power of attorney should you wish to revoke an existing one. The cost of proper estate planning is negligible when compared to the costs of making a mistake that lands your Estate in Court.
For questions about Durable Powers of Attorney, or other Estate Planning documents, please contact our East Bay Estate Planning Law Office at 925-322-1795 for a consultation.
Very helpful. What happens in the case of someone who has been appointed attorney reassigning that power of attorney to a third party. (done without our permission). If we revoke the person we appointed does that annul the third party also?
If a person becomes mentally and physically unable to carry out the duties of poa can he or she appoint someone else. Can other siblings revoke the poa if it’s proven that he Or She is incapable of the poa duties.
My dad was put into the hospital because he had dementia the hospital was looking for a nursing home for my dad to go to my oldest sister had a power of attorney. she’s the one that put him in the hospital but when the hospital sent him to the nursing home they claimed they never received paperwork saying who’s the power of attorney was over my dad so when my younger sister in the ex-wife came to the nursing home to see my dad they told the administrator in office that they didn’t know who our father’s caretaker was. So the nursing home gave them power of attorney . and when we went up there to see the administrator they told us the power of attorney papers my older sister had was void no good so we asked them how can you change the power of attorney when there was one already set in place they told us that we had no say so anymore so then my dad got sick the nursing home didn’t tell us he was put in the hospital nursing home didn’t tell us only person who knew my dad was sick was my younger sister who had a power attorney she didn’t tell us nothing she sign the paperwork for my Daddy to have surgery and now my dad passed away. he Was in the hospital for a whole week and we knew nothing about it I found out through a Facebook post and then the day that he was dying the hospital calls me because they couldn’t reach my younger sister who is the power attorney when I got up to the hospital. With my older sister my dad was gone.
What happens, if he has power of attorney of me, and we get divorced……? Robin…….
My ex and business partner drew up a POA of our business and put my name on it to run our business alone while he left the country to "travel as he put it". I have now found out he has locked me out of the business website and our vendor accounts as well as our business bank accounts. Does he have to right to do this since he is not even here in the states? I still have the original POA that puts me in charge of the business….I really need some advice please.
I’m sure the answers to these questions were kept private, but you could have been "general" and requested they call you to get the full explanation. That would have been helpful to those who visit this site due to their question relating to the others when conducting a Google search. I do, however, appreciate the article, but I am unable to "share" with individuals in the nursing homes who I assist as a relocation specialist (can’t print). Thank you nonetheless.