How to Take Power of Attorney Away from Someone

Whether you are the person who made the power of attorney or someone who cares about the person who made it and feels that the person who has the power of attorney is abusing it, there are ways that you can take away a power of attorney from someone.

Types of powers of attorney

A power of attorney is legal document granting another person, called the “agent” or “attorney-in-fact,” the power to represent you under the circumstances stated in the power of attorney. The principal who executed the power of attorney can also revoke it.

Some powers of attorney have an expiration date. Others are granted only for a limited purpose, for example, to manage your affairs when you are out of the country. Some powers of attorney terminate when the principal loses mental capacity (e.g., non-durable power of attorney). Some powers of attorney continue even when the principal loses mental capacity (e.g., durable power of attorney). Other powers of attorney only grant the powers to agent when the principal loses mental capacity (e.g., springing power of attorney). When the power of attorney terminates may also depend on the language in the power of attorney.

Ways for the person who made the power of attorney to take it away

There are three ways for the person who made the power of attorney to take it away:

Revocation by destruction

If you executed a power of attorney but have not given your agent a copy yet, then you can destroy the power of attorney.

Revocation by notarized written letter

If you have executed a power of attorney and given your agent a copy of the power of attorney, you can write a notarized revocation letter and have this received by your agent, any banks who may have relied on your previously executed power of attorney, and other government agencies (e., the county recorder) where you have recorded assets (i.e., house or land). This revocation letter must be acknowledged before a notary public.

Revocation by execution of new power of attorney revoking all previous powers of attorney

You can execute a new power of attorney, stating that you are revoking all previous powers of attorney, and appointing a new attorney-in-fact as your agent. You must send your new power of attorney to your previous agent to notify him that his power of attorney has been revoked and a new agent has been appointed. You must also send the new power of attorney to all other institutions who may have relied on the previously executed power of attorney to inform them about your previous agent’s revocation and new agent’s appointment. Your new power of attorney must be validly executed in order to revoke the previous power of attorney. For this reason, the new power of attorney must be acknowledged before a notary public.

If you are the person who made the power of attorney, you don’t need a reason to take it away

It is perfectly acceptable to change your mind and take away a power of attorney granted to a third person. You don’t even need to provide that person a reason. It is enough that you executed your notarized revocation or a new power of attorney revoking that person’s powers as your agent.

You don’t normally need a lawyer to prepare your power of attorney. However, it is advisable if you want to ensure that your revocation and that your new power of attorney is valid. Your lawyer can also help you ensure that the power of attorney you are signing is for the function you would like it to perform.

On the other hand, if you are a third person who would like to take away another person’s power of attorney, you will need the assistance of an attorney who can help you file the appropriate guardianship proceedings to petition the court to be the court-appointed guardian and request that the court take away the other person’s power of attorney.

Someone who did not make the power of attorney can file a guardianship proceeding which would take away the power of attorney

When the principal has diminished mental capacity and is incapable of revoking the power of attorney he has previously granted, a third party, can take away that agent’s power of attorney by filing guardianship proceedings and requesting the court to revoke such power of attorney.

Typically such a third party is a child of the person who made the power of attorney. That child is alleging that the person using the power of attorney is abusing it. In that case, you need to file a petition with the court describing the reasons for your concern on why the principal’s agent’s authority needs to be terminated.

You can cite specific instances of abuse of the powers, acts constituting conflicts of interest, or other matters relating to the ineligibility or disqualification of the agent. A guardianship lawyer can assist you in this petition.

Instances when a power of attorney may be revoked automatically

Agent or principal’s death

When you die, the agent has no principal to represent. When the agent dies, the agent does not have the ability to act anymore in your behalf. For this reason, death of both the principal and/or agent automatically revokes the power of attorney. After the principal’s death, the personal representative appointed by the court (usually the executor or administrator, depending on the circumstances of the case) is the person entitled to represent the decedent’s estate.

Divorce when the agent is your spouse:

Under New York EPTL § 5-1.4, a provision conferring a revocable power of appointment on the former spouse is considered revoked upon divorce, annulment, or legal separation. It is still wise, however, to give notice to institutions who have previously relied on your power of attorney in favor of your former spouse to minimize any risk of your former spouse abusing the revoked power of attorney.

Expiration of period or happening of an event

In cases when the power of attorney is for a particular period only (i.e., you are given the power to sell the property only for a particular period), when the period ends, your power of attorney ceases.

In cases when the power of attorney is for a limited purpose (i.e., to manage your affairs while you are out of the country), the power of attorney cannot be exercised when you are in the country.

In cases when the power of attorney ceases to be effective when you lose mental capacity, such power of attorney ceases upon the happening of such event of losing mental capacity.

When a specific task is completed

When you grant a person a temporary power of attorney for the completion of a specific task (i.e., sale of your car), when the task has been completed (i.e., that car has been sold), the power of attorney ceases to be effective.

Should you need assistance in preparing or revoking a power of attorney or initiating guardianship proceedings that would take away another person’s power of attorney, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].