Possible Power of Attorney Complications

By Wayne Thomas

A power of attorney can be an effective way to delegate responsibility for managing your finances and making health-related decisions when you are no longer able or willing to make these decisions yourself. However, complications can arise from the time the POA is executed up until the point that all duties have been performed by the person you appoint.


A power of attorney is a legal document authorizing someone to act on your behalf. The person you appoint is known as the agent, and you are referred to as the principal. POAs are commonly drafted to cover either health care or financial matters in the event you become incapacitated, often due to illness or advanced age. The decision about whether you are incapacitated is generally made by an attending physician or psychologist, who declares you unable to make competent financial or medical decisions. Some POAs, called durable POAs, take effect immediately -- before you are incapacitated -- and continue through incapacity. Others, called springing POAs, take effect only after a specific event occurs, such as you becoming incapacitated.

Timing Issues

Both health care and financial POAs must be executed, modified, or revoked while you are still competent. If you attempt to appoint an agent to act after you have been declared incapacitated -- or even if you just change certain instructions to your agent -- complications can arise. Although the process can vary from state to state, family members, close friends, or your health care provider may generally petition the court to either invalidate the POA or obtain an order invalidating any improper modification or revocation of an existing POA.

Ready to appoint a power of attorney? Get Started Now


In addition to complications related to your mental state, a POA can also be challenged for failure to comply with the formal requirements under state law. Although states vary on the specific requirements, POAs must generally be signed, written, witnessed and notarized. Some states also have specific rules on who may not serve as a witness to a health care POA, such as your attending physician, or people closely related to you. A judge will invalidate any POA that does not observe state law requirements.

Fiduciary Duty

The agent you appoint to act under a valid POA must follow your instructions as outlined in the POA. In addition, state laws require that every agent observe what is known as the fiduciary duty. This duty requires the agent to always act with your best interests in mind. Under a health care POA, this duty might include seeking second opinions, exploring alternative treatment options, keeping your family members and friends informed, and ensuring that your religious or spiritual beliefs are considered. For financial POAs, this duty requires that your agent make prudent investments with your money and not use your property for personal gain. A complication can arise if your agent breaches his fiduciary duty. In cases where an agent has abused his position, a judge can order the agent removed. Further, in the case of a financial POA, an agent can be held liable for any funds improperly appropriated.

Ready to appoint a power of attorney? Get Started Now
Medical Situations That Require a Durable Power of Attorney for Health Care


Related articles

Does a Power of Attorney Need Both Signatures?

A power of attorney allows another person to step into your shoes to make medical or financial decisions for you. The rules for creating a power-of-attorney document vary among states, but all jurisdictions require your signature and some also require the signature of the person you have appointed as your agent.

Power of Attorney & Mental Illness

One way you can help a relative or friend living with mental illness is to become his agent through the creation of a mental health power of attorney. A mental health POA is a legal document that makes you a substitute decision maker in situations where your loved one is unable to make treatment and self-care decisions due to a recurrence of mental illness. The mental health POA contains language reflecting your loved one's treatment preferences.

What Protects Families From Power of Attorney Abuse?

A power of attorney is a legal status that grants an individual powers to make financial or health decisions on behalf of another person. The person granting the power of attorney is the principal and the individual receiving the powers is the agent. Agents are required to act in the best interests of the principal; however, it is not uncommon for agents to take advantage of the situation by stealing money or unlawfully selling property. It may be possible to safeguard against this situation by using specific language in the power of attorney document or by appointing more than one power of attorney. If the damage has already been done, there are civil and criminal sanctions available.

Power of Attorney

Related articles

North Carolina State Statutes Regulating Power of Attorney for Health Care

A power of attorney for health care can give you piece of mind that appropriate medical and mental health decisions ...

What Is a Revocable Power of Attorney Form?

A revocable power of attorney, or POA, is a legal document that appoints an agent, or attorney-in-fact, to handle ...

Power of Attorney Guidelines for State of Oregon

A power of attorney is a legal document that allows you to appoint someone to act on your behalf if you become ...

What Happens if a Beneficiary Becomes Mentally Incompetent?

The mental incompetency of a beneficiary can create complications for the trustee of a trust or anyone else who stands ...

Browse by category
Ready to Begin? GET STARTED