A power of attorney is a legal instrument by which you appoint someone you trust, known as your attorney-in-fact, to act on your behalf. It may be necessary at some point to remove or change the person you have named as your attorney-in-fact. Depending on the circumstances, ending the authority granted to one attorney-in-fact and appointing another may simply be a matter of preparing the paperwork and giving notice.
Prepare a new power of attorney appointing a different attorney-in-fact to act on your behalf. This power of attorney should state that it is revoking any prior powers of attorney executed by you, thereby terminating the original attorney-in-fact’s authority.
Prepare a separate revocation or notice of revocation of power of attorney. Even if your new power of attorney revokes your older one, giving immediate written notification of revocation may be wise if there has been misconduct or mistrust between you and your attorney-in-fact.
Provide copies of the new power of attorney or notice of revocation to parties with whom you normally transact business and make sure they understand that your prior attorney-in-fact no longer has authority to legally act for you. Provide a copy to the attorney-in-fact who is being removed. Laws in some states protect financial institutions and other parties who rely on a power of attorney without knowledge of its revocation.
Record the new power of attorney and/or the revocation of the old in the county’s land records to give the public notice of the change. It is particularly important to record the revocation if the original power of attorney was placed of record. Just as the recording of the power of attorney gave public notice of the attorney-in-fact’s appointment, the same is true of her withdrawal or termination.
Tips & Warnings
Your original power of attorney may have named a successor attorney-in-fact to act after removal or resignation of the original attorney-in-fact. However, if the primary attorney-in-fact does not voluntarily resign or the terms of the original power of attorney are not clear regarding removal of the primary attorney-in-fact while transferring her powers to the successor, it may be wise to start over with a new one.
A power of attorney can be a powerful legal document and laws regarding language contained in it may vary from state to state. Seek the advice of an attorney regarding preparation or revocation of yours.
State law may prevent a durable power of attorney being revoked by a principal who has been declared mentally incompetent.
A divorce may automatically revoke the powers granted to an attorney-in-fact in some states.
State law may dictate what is considered proper service of revocation upon the attorney-in-fact and third parties who rely on the power of attorney. Contact an attorney for advice regarding notification requirements.
References & Resources
- The Florida Bar: Florida Power of Attorney Pamphlet
- Massachusetts Estate Planning and Elder Law: How To Revoke a Power of Attorney
- Washington State Legislature: RCW 11.94.09, Court Petition.
- Kansas Statutes: Chapter 58, Article 6: Powers and Letters of Attorney
- Texas Constitution and Statutes: Probate Code, Chapter XII. Durable Power of Attorney Act, Sec. 486
- Columbia Legal Services: Questions and Answers on Powers of Attorney
- State of Wisconsin, Department of Health Services: Wisconsin Statutory Power of Attorney for Finances and Property
- State Bar of Wisconsin: Durable Powers of Attorney for Finances and Other Property
- State of New Jersey, Office of the Ombudsman for the Institutionalized Elderly: Durable Power of Attorney - Questions and Answers
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