Can an Incompetent Person Revoke a Power of Attorney?

By Ronna L. DeLoe, Esq.

Can an Incompetent Person Revoke a Power of Attorney?

By Ronna L. DeLoe, Esq.

As people get older, it's common for them to experience a degree of cognitive impairment. Sometimes the impairment is minor, but some impairments can render people incompetent. If the person has a power of attorney (POA), competence comes into play if the principal, who makes the POA, wants to revoke it. While revocation and making a POA require mental competency, what constitutes competence has long been an issue for attorneys.

Find out what you can do if your principal wants to revoke a power of attorney.

What Are Powers of Attorney?

There are different types of powers of attorney, and each has advantages and disadvantages. A general POA allows a principal's agent—the person who acts for the principal—to do the acts listed in the POA document or do anything the principal can do, depending on the document's wording. A general POA ends when the principal becomes incompetent.

A durable POA, however, continues even if the principal is legally incompetent. If your loved one has a durable POA, and you're the agent, you can still act for the principal even if they've become incompetent.

What Is The Legal Meaning of "Incompetent?"

A principal can revoke a power of attorney only if they're competent. What constitutes incompetence is a matter of interpretation, which varies among states.

Someone who is incompetent may have impaired judgment or cannot live independently. They may not understand what they're doing. They're usually unable to think clearly or function daily without impaired judgment.

Signs of mental incompetence could be anything from the principal having serious dementia, overspending, or failing to exercise sound judgment. Being mentally incompetent can manifest itself by the principal's failure to use proper hygiene or by allowing others to perform unusual transactions, such as depleting their bank account.

A person who has a mental illness is not necessarily incompetent. Incompetence is a legal conclusion, often made by a court, that the principal is unable to understand the consequences of their actions. Many people with mental illnesses can make sound decisions. Likewise, some people with dementia are still competent during periods of lucidity or if their dementia is mild.

How Does Incompetence Affect POA Revocation?

Signing a power of attorney and revoking it requires mental competence. A principal can revoke a POA even if the principal has dementia. Still, it's helpful for an attorney to draft the revocation, as the attorney may have to prove that the principal was lucid and competent when they revoked the POA.

A court will ultimately decide whether someone is mentally incompetent if the POA doesn't adequately explain incompetence. Many POA documents are poorly worded and require a court to get involved to decide competency. Depending on the state, a court could require one or two doctors to determine incompetency, which could include utilizing the principal's primary care doctor, or a psychologist, or both.

If a POA document is well-drafted, it will include a provision defining when the principal is incompetent. For example, a POA might contain a clause stating that the principal is incompetent if their primary care doctor says so in writing, or if two experienced doctors concur, in writing, that the principal is incompetent.

Without this clause, the agent or family members may need a court to decide whether the principal is incompetent. Someone may still petition a court to challenge an out-of-court incompetency determination, but you might avoid court if a POA document specifies how to declare the principal incompetent.

How to Revoke a Power of Attorney

Because an incompetent person cannot revoke a POA, an incompetent principal also cannot name a new agent or create a new POA.

If a court finds the principal of a general POA incompetent, guardianship of the principal is generally the next step, as the principal lacks capacity to create a new POA or revoke any type of POA.

What if an Incompetent Principal Wants to Revoke Their POA?

If the principal wants to revoke the POA and you don't believe they're competent, it's a good idea to consult an attorney. You can try explaining to the principal that you're looking to protect them, their property, their health, and their money so they'll cooperate. Assure the principal that you care about them and that you're trying to help. If the principal cannot understand, contact an attorney who handles elder law or guardianships, as guardianship may now be necessary.

An attorney will likely encourage you to take the principal to a doctor for a decision on competency. If a doctor declares the principal incompetent, you'll know to proceed with guardianship or to continue as agent if you're appointed by a durable POA. If you're an agent pursuant to a healthcare POA, you'll want to get the best medical care for the principal if they can't take care of themselves. If your principal won't cooperate, it's advisable to get assistance from family members or friends to help you get the principal to the doctor or to an attorney.

While revoking a POA is relatively easy—either by writing a POA revocation, by destroying the POA, or by preparing a new one and sending copies to the former agents—it can't be done by someone who's incompetent. As the agent, taking care of the principal is your duty. Getting doctors to declare incompetency pursuant to a POA or by a court are the next steps to getting your principal the help they need.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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