A power of attorney is a written document in which you, the principal, give a trusted person, or agent, the right to handle financial and property affairs on your behalf. One aspect of a power of attorney is that it can be made revocable or irrevocable. With a revocable power of attorney, you can revoke the powers granted to the agent at any time; by making the power of attorney irrevocable, you are giving up your right to revoke those powers.
Under a power of attorney document, the agent's power to act on behalf of the principal is either general or limited. With a general power, the agent can conduct any lawful transaction that the principal could engage in on his own behalf. In the case of a limited power, the agent is restricted to handling the matter specified in the power of attorney document, such as managing one apartment building. The power of attorney can be effective immediately or only become operative upon some future event, such as the physical or mental incapacity of the principal. All powers of attorney are automatically revoked upon the death of the principal.
Irrevocable and Revocable Powers
A power of attorney is revocable if the principal reserves the right to revoke the power at any time. Once the principal revokes the power, the agent can no longer act on the principal's behalf. But a power of attorney can be made irrevocable if the document includes a provision that specifically states that the principal gives up the right of revocation or otherwise indicates that the power is irrevocable. As a practical matter, an irrevocable power of attorney is rarely used and is typically limited to a specific purpose.
The most common use for an irrevocable power of attorney involves transactions in publicly traded stock. Shareholders unable to attend the yearly general meeting may use an irrevocable power of attorney to give another shareholder the right to vote their shares, commonly known as proxy voting. To give the corporation's directors assurance that the power is effective at the time of the meeting, the power is made irrevocable. The power is typically limited to the current meeting, after which it expires. An irrevocable power of attorney may also be used by courts in guardianship or conservator cases where the guardian or conservator resides out of state. As a condition of appointing the guardian or conservator, the court will require that an irrevocable power of attorney be given to the clerk of court to accept personal service of documents. This prevents the guardian or conservator from delaying court proceedings by evading or otherwise being unavailable for personal service of important court documents. Some states, such as Arizona, also permit an irrevocable power of attorney for making health care decisions when the agent cannot do so for themselves.
Revoking an Irrevocable Power of Attorney
Despite its name, an irrevocable power of attorney can be revoked in some situations. If the agent or attorney-in-fact is abusing his position by acting in a manner contrary to the best interests of the principal, a court action can be filed to revoke the power. And in some states, simply using the word "irrevocable" in the document will not necessarily make the power of attorney irrevocable. A court often looks at the relationship and transactions between the principal and agent to determine if the power was intended to be irrevocable.
References & Resources
- Morton Law Firm PLLC: Your Durable Power of Attorney
- FindLaw Legal Dictionary: Power of Attorney
- Free Law Library: Irrevocable Power of Attorney
- LeapLaw: Irrevocable Power of Attorney (Stockholders)
- Denver Probate Court: What Do I Need to Do to Have Another Adult Take Care of My Child(ren)?
- Arizona Attorney General: Durable Mental Health Care Power of Attorney
- Caring.com: Can You Go From Durable to Irrevocable Power of Attorney?
- Eversheds: Revoking an Irrevocable Power of Attorney
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