How to Dispute a Power of Attorney

By John Stevens J.D.

When a person creates a power of attorney, she allows a trusted person named in the document to act on her behalf and, depending on the terms of the document, to carry out her wishes. Like all legal documents, a power of attorney can be disputed. There are a number of grounds under which a power of attorney can be challenged. Some grounds are easier to establish than others.

When a person creates a power of attorney, she allows a trusted person named in the document to act on her behalf and, depending on the terms of the document, to carry out her wishes. Like all legal documents, a power of attorney can be disputed. There are a number of grounds under which a power of attorney can be challenged. Some grounds are easier to establish than others.

Power of Attorney Requirements

The requirements to create a valid power of attorney document vary by state. At a minimum, the person who granted the power of attorney must sign the document. In some cases, a person can sign on the creator’s behalf if the creator is unable to do so. Some states require witnesses to watch the signing of the document. Other states require only that a notary public watch the signature. In all states, the person must have the legal capacity to create a power of attorney. If the requirements are not satisfied, the power of attorney might be void.

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Lack of Capacity

If the principal did not have the mental capacity to sign a power of attorney document, any power granted under the document is void. Mental capacity, sometimes referred to as “sound mind,” is a legal requirement that the person who creates a power of attorney have the ability to understand what she is doing. Assume, for example, that Jane creates a power of attorney that gives the power to her friend, Karen, and that Jane had taken powerful medications before signing the document. Jane becomes incapacitated and her daughter, Susan, wants to void the power of attorney. If Susan can show that her mother’s medication prevented her from understanding that she was signing a power of attorney, the document is probably void. In all states, only an adult may create a power of attorney, as a minor is presumed to lack the mental capacity to do so.

Fraud and Undue Influence

A power of attorney document signed as a result of fraud or undue influence is void. Fraud can mean the person who signed the document was misled as to what she was signing. For example, if a person was fooled into signing a power of attorney rather than some other document, the power of attorney is void. Fraud can also result if a person misleads the signor as to the contents of the document. Undue influence is a form of extreme pressure. Assume that Jane develops a close relationship with her caretaker and depends on her caretaker for her daily needs. If the caretaker influences Jane to create a power of attorney naming the caretaker as the person with the power, the document is likely void on the ground of undue influence.

Creation and Revocation

A challenger can focus on the document’s creation or claim the document was revoked. In some cases, a person challenging the validity of the power of attorney can argue both. The burden in either scenario is on the person challenging the document. Perhaps the most straightforward claim is the document was not executed properly. If, for example, the law requires witnesses to watch the signing, and the required number of witnesses did not watch the signing, the document is probably void. Proving a lack of capacity, the existence of fraud or undue influence, or the document was revoked is more challenging. Witnesses who can testify as to the creator’s mental condition, or to the circumstances surrounding the document’s creation or revocation, can be invaluable, as can a letter from a physician stating the creator lacked the capacity to sign the document.

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The Revocation of a Living Will

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