Can a Person Give or Turn Over Her Power of Attorney to Someone Else?

By Teo Spengler

Although a power of attorney involves two persons, it is not a contract and can be unilaterally revoked. The person making the document, termed the principal, uses the power of attorney to name an agent to act for her. A competent principal is free to revoke that authority at any time and confer it on another agent. The person named as agent can also decline to serve but cannot give or transfer her authority under the power of attorney to another.

Although a power of attorney involves two persons, it is not a contract and can be unilaterally revoked. The person making the document, termed the principal, uses the power of attorney to name an agent to act for her. A competent principal is free to revoke that authority at any time and confer it on another agent. The person named as agent can also decline to serve but cannot give or transfer her authority under the power of attorney to another.

Overview

You draw up a power of attorney in order to give someone else the authority to act in your stead regarding financial or healthcare matters. As principal, you select a person to act as your agent and describe the scope of the authority you give her. You can give the agent authority to act on your behalf for a limited purpose, such as selling stocks, or allow her general control over all of your financial matters. Durable powers of attorney are those that remain valid if the principal becomes incompetent. This legal document must be executed according to the laws of your state which may require a notary or witnesses to verify your signature.

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Principal's Right to Revoke

A person must be competent to make a power of attorney and as long as she remains competent, may revoke it at any time. In many states, the document must be revoked in writing and with the same formalities used when the power of attorney was enacted. In Utah, for example, a revocation of a power of attorney, like the power of attorney itself, must be in writing and the principal's signature must be witnessed by a notary. It only makes sense to notify the previous agent of the revocation and, in some states, this notice is a requirement of revocation. If your state laws required you to record the original power of attorney, you must record the revocation in the same place and manner. Once you have revoked a power of attorney, you can prepare another form naming someone else as agent.

Incompetent Principal

A person who becomes incompetent without having made a durable power of attorney cannot make one; her family must ask the court to appoint someone to act on her behalf. Additionally, a person who becomes incompetent after having made a durable power of attorney cannot revoke it. However, if family members believe the agent has breached his fiduciary duty to make decisions that are in the best interests of the principal, they may ask the court to step in and appoint a conservator or guardian.

Agent's Right to Decline

In some states, a person named as an agent in a power of attorney must sign the document along with the principal to indicate that she is aware of her appointment and agrees to it. Yet, an agent may opt out of the duties involved for any reason, before or after she begins acting as agent. She cannot, however, simply pass the duties on to someone else. If the principal appointed several people to serve as co-agents, the remaining co-agents continue to perform as agents after one of them resigns. If an alternative agent was named in the power of attorney, that person becomes agent if the original agent declines to serve. Generally, a successor agent has the same scope of responsibility as the original agent.

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Power of Attorney Obligations

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