Can a Power of Attorney Be Revoked by a Mentally Incompetent Principal?

By Chris Blank

Power of attorney is one of several legal mechanisms designed to protect a person's legal interests. A durable power of attorney allows someone designated by the principal, or the person executing the power of attorney, to act as an agent on the principal's behalf. While power of attorney may be revoked, the law does not allow a mentally incompetent principal to do so.

Power of Attorney Definition

Power of attorney refers to a legal document that allows an agent to conduct transactions on behalf of a principal. General power of attorney allows an agent to conduct transactions in nearly all aspects of a principal's life, including accessing bank accounts, paying bills, initiating and responding to lawsuits and executing the terms of contracts to which the principal is a party. Limited power of attorney refers to latitude granted by the principal to the agent for a specific purpose, for instance, handling the sale of a house. Once that specific transaction is completed, the power of attorney expires.

Mental Competence Defined

Mental competence is defined as the ability to understand the terms of a contract and the capacity to enter into an agreement. Mental competence can be temporarily compromised, for instance, by intoxication. Permanent mental incompetence can result from severe head or brain injury, mental illness, retardation or a degenerative mental condition such as dementia. The law does not allow a principal who is mentally incompetent to designate power of attorney. A mentally incompetent principal is also prohibited from revoking a power of attorney that was properly drawn up. In fact, a durable power of attorney is designed to allow an agent to act in place of a principal who becomes incompetent, either due to illness, injury or some other reason.

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Revoking Power of Attorney

A mentally competent principal does not give up the right to handle her own legal affairs. She may elect to act on her own behalf even with a power of attorney in place. A principal may revoke power of attorney at any time, including durable power of attorney, as long as she remains mentally competent. A principal may also regain the legal right to revoke power of attorney after a period of mental incompetence by demonstrating she has regained the capacity to handle her own legal affairs.

Establishing Mental Incompetency

If the principal chooses, she may designate the conditions under which she may be declared mentally incompetent as one aspect of a durable power of attorney. Even without such a designation, many courts will require a physician to submit a written determination that a principal is mentally incompetent. The physician will probably consider three areas before making a determination: whether a principal understands the terms of the power of attorney in question, whether she understands the seriousness of making such an agreement and whether she can reasonably communicate her wishes.

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Types of Power of Attorney for Elderly Family Members

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Laws of Tennessee Power of Attorney

A power of attorney allows an agent to make medical or financial decisions on behalf of a principal, subject to the terms of a written power of attorney authorization form. Power of attorney is governed by state law, and the laws of each state are slightly different. In Tennessee, power of attorney is governed by Section 34 of the Tennessee Code.

What Do You Call the Absolute Power of Attorney?

You may find references on the Web to an "absolute" power of attorney that remains in effect after death, but no such animal exists. Although these important legal documents can grant agents extremely broad authority in both financial and health care matters, every power of attorney expires upon the death of the maker.

Difference Between the Durable and Regular Power of Attorney

A power of attorney is a means by which by one person, called a principal, authorizes another person, called an attorney-in-fact or agent, to legally undertake some action or business of the principal's on the principal's behalf. A durable power of attorney is a special form of authorization that allows the attorney-in-fact to continue acting on the principal's behalf even if the principal is ill or unable to communicate.

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