A power of attorney (POA) is a powerful legal tool, but it’s not immune to misuse. In California, this document gives someone else the authority to act on your behalf in financial, legal, or medical matters. But what happens when the agent no longer acts in the principal best interest or, worse, abuses that authority? Whether you’re a concerned family member, a spouse, or the principal yourself, it’s essential to understand who can override a power of attorney. Here are your legal options under California law, including how to revoke, challenge, or replace a POA when necessary.
“A power of attorney can be your strongest safeguard or your greatest liability,” said Nicholas D. Porrazzo, a Partner at Gokal Law Group who is an expert in trust and probate litigation and was a Super Lawyers Southern California Rising Star 2024. “This legal arrangement transfers considerable power, and when it’s in the wrong hands, that power can be misused fast,” he said.
Who Can Override a Power of Attorney in California?
Understanding who can override a power of attorney is only part of the equation. Equally important is knowing how and when that authority can be revoked, either by the principal or through court intervention. The laws in California provide several avenues for revocation, but they depend heavily on the principal’s mental capacity and the surrounding circumstances. Let’s explore the legal process of revoking a power of attorney and what to expect if you’re considering this action.
Can a Power of Attorney Be Revoked?
Yes. In California, a power of attorney can be revoked by the principal at any time, as long as they have legal capacity. The revocation must typically be in writing and delivered to the agent and any institutions relying on the POA. The terms of the revocation are usually included in the POA and must be followed exactly to properly effectuate the revocation.
If the principal is incapacitated, however, and it is discovered the agent has committed power of attorney abuse, this is a violation of their fiduciary duties, and revocation may then require legal action for revocation to occur.
Related Article: What is Breach of Fiduciary Duty in California?
Under What Circumstances Can a Power of Attorney Be Revoked?
A POA can be revoked when the principal is of sound mind and no longer wishes the agent to have authority. If the principal is incapacitated, the probate court may step in to suspend or revoke the POA if it finds the agent is acting improperly or against the principal’s best interests.
If the principal lacks capacity, they will not be able to revoke a power of attorney, and someone else will need to intervene and take legal action on their behalf to revoke it. This is possible through working with an attorney to file a petition with the court to have the POA revoked.
Do You Need a Lawyer to Revoke a Power of Attorney?
While it’s not legally required to hire a lawyer to revoke a POA, working with an attorney ensures the revocation is valid, properly delivered, and recognized by third parties like banks or healthcare providers. Legal help is especially important in contested situations.
Related Article: 7 Identifiable Signs of Elder Financial Abuse
Who is Authorized to Revoke a Power of Attorney?
The principal is the only person who can revoke a POA if they are of sound mind. However, this changes when they lack capacity. In that case, a Petition can be brought before the court to seek removal and/or suspension of the POA. The next step would then be to seek a conservatorship over the individual who lacks capacity.
Can a Wife Override a Power of Attorney?
A spouse cannot override a valid POA of their spouse. Simply being a spouse does not grant the power to revoke or challenge a POA. However, if the spouse believes that the POA is being abused and the principal lacks capacity to revoke it him or herself, then the spouse can petition the probate court to suspend or revoke the POA.
Can a Family Member Revoke a Power of Attorney?
Family members do not have authority to revoke a POA. However, if they suspect POA abuse or misconduct, they can file a petition with the probate court asking for oversight, suspension, or revocation.
Can One Power of Attorney Supersede Another?
Yes. A new POA can revoke and replace a prior POA if it is properly executed with the necessary language and the principal has legal capacity. It is important to state in the new document that all previous powers are revoked.
Who Can Override a Medical Power of Attorney?
A medical power of attorney can be overridden by the principal (if they are still mentally competent), a court, or a newly executed advance health care directive.
In California, the court may intervene if the agent is acting against the principal’s best interests, violating their wishes, or committing abuse or neglect. A judge can revoke the agent’s authority and appoint a conservator or another responsible party.
In limited cases, medical providers may also override an agent’s decisions if those choices conflict with ethical standards or endanger the principal. If you suspect misuse of a medical power of attorney, legal action may be necessary to protect your loved one.
Can a Hospital Override a Power of Attorney?
Still, hospitals generally cannot override a valid medical power of attorney or advance health care directive even if they disagree with decisions being made. If a patient has legally designated someone to make medical decisions for them, that person’s authority stands.
However, until 2023, California allowed hospitals to make decisions on behalf of incapacitated patients without a POA or directive, sometimes even against the family’s wishes.
A new 2023 law now allows surrogates (such as next of kin or even the person who brought the patient to the hospital) to be recognized as decision-makers in these cases, providing more clarity and family-centered control when no formal document is in place.
Can a Power of Attorney Be Changed without Consent?
A POA cannot be changed without the principal’s consent. If the principal lacks capacity, changes must be made through a court proceeding, such as a conservatorship or litigation, if necessary.
How Can You Remove a Power of Attorney in California?
Generally, there are two ways that you can revoke or amend a power of attorney. The first is through a written revocation document from the principal, and the other is through litigation when it is discovered that the agent is abusing their position. The POA itself should govern the method of revocation.
Can You Override a Power of Attorney?
Yes. If the principal is competent, they can revoke the POA. If not, concerned parties can petition the probate court to suspend or terminate the agent’s authority.
Can You Challenge a Power of Attorney?
Yes. You can challenge a POA if you believe the agent is abusing their authority or if the document was created under duress, fraud, or while the principal lacked capacity.
How Can You Contest a Power of Attorney?
To contest a POA, you must file a petition in probate court outlining your concerns. The court may hold an evidentiary hearing to determine the principal’s capacity, the agent’s actions, and whether the POA remains valid. In these situations, it is crucial to consult with a power of attorney abuse lawyer.
How to Challenge a Power of Attorney
To challenge a power of attorney, you have to gather evidence of abuse or incapacity, work with an experienced probate attorney, and file a petition in the appropriate California court. The process may involve testimony, medical records, and financial documentation.
How to Revoke a Power of Attorney in California
A revocation of power of attorney must be signed by the principal, dated, and delivered to the agent and any relevant third parties. If the principal is incapacitated, a court-appointed conservator must seek court approval to revoke the POA. Here is how to revoke a power of attorney:
1. Determine Whether You Have a Valid Reason for Revoking the Power of Attorney
You cannot have an incapacitated loved one’s power of attorney without having the proper grounds for doing so. Essentially, by trying to revoke a power of attorney without proper grounds, you are effectively attempting to override your loved one’s wishes. Common legal grounds include:
- Someone abusing a power of attorney to steal from the incapacitated individual
- Someone making risky investments with the principal’s money
- Someone mismanaging the principal’s asset
2. Confirm You Are Authorized to Override the Power of Attorney
It’s important to keep in mind that if a principal has capacity, only they have the authority to override their power of attorney. If they lack capacity, however, anyone who has their best interests in mind, whether that be a close friend or family member, can usually file a POA revocation claim.
Still, bringing a claim does not guarantee it will be granted by the court. The court will consider many factors before arriving at a decision about whether to revoke the document or not. If the POA is successfully revoked, a conservatorship may need to be established.
3. Consult with a Power of Attorney Lawyer
It is essential to work with a power of attorney lawyer as soon as you suspect you will need to revoke a POA. Not only will your attorney handle all the tedious parts of the litigation process, but you’re more likely to receive the resolution you are after.
Also, if a principal is suffering at the hands of a bad actor agent, an attorney will be able to stop any power of attorney abuse that is occurring and recover your attorney’s fees and costs, lost assets, and even damages, either from the agent themselves or the principal’s finances.
4. Gather Evidence to Support Your POA Revocation Claim
To prove your claim to the court, you will need to produce evidence to support it. While the power of attorney could serve as evidence, it is often not enough to fully support these claims.
Evidence can include accountings provided by the agent to interested parties, real estate deeds and appraisals of property, bank statements, communications, and expert witness testimony. The type of evidence you need depends wholly on your claim and circumstances.
Without expert legal guidance, it can be difficult to know what type of evidence you’ll need, as well as where to search for evidence. Because of this, having a lawyer in your corner can substantially streamline this process and ensure your evidence will adequately support your claim.
5. File a Formal POA Revocation Claim with the Court
Once you have gathered all the evidence you need to demonstrate that an agent has abused the authority afforded under a power of attorney designation, you then need to file a claim with the court.
Claims must include your specific reasons for desiring revocation of the POA. These should be supported by the evidence you found. Additionally, you should list what legal remedies you are seeking. It’s likely you’ll be seeking revocation of the power of attorney.
If you are seeking to recover money or other assets in addition to revocation, working with a power of attorney lawyer is crucial. They will prepare and file the claim for you. Once the court reviews your claim, it will set a date for the initial court hearing. Attend this hearing with your attorney.
During this hearing, your lawyer will make persuasive oral arguments to support your claim, after which the court will move to grant, deny, or defer its decision to a later date. If your claim is granted, you may need to establish a conservatorship to protect your loved one.
“You don’t have to wait for financial damage or medical harm to take action,” said Porrazzo. “If something feels off, trust your instincts and get legal help. A bad actor with POA authority can drain a lifetime’s worth of assets in mere weeks,” he added.
Contact Our Power of Attorney Abuse Lawyers to Revoke a POA
So, who can override a power of attorney in California? In most cases, only the principal or the court has this authority. If you’re concerned about misuse or abuse of a POA, our team is here to help. We represent families across California in challenging powers of attorney, seeking conservatorship, and recovering misused assets. Contact us today to protect your loved one’s legal rights.
One Response
My mother gave my Older sister power of attorney over my developmentally disabled younger sister and promised my mother she would not put her in a care home as soon as my mom past my older sister the agent gave away and sold 90 %of my younger sisters things and cashed out my younger sisters burial insurance and then put her in a home, she has blocked me from having any communication with my you her sister and has tried to keep me from having a relationship with her and we are very close we talked everyday and now because I expressed concerned for the safety and health of her based on what she told me last time we talked I was emediatly cut off from her. I want her striped of her power and I would like to have my sister come and live with me so I know she is safe and protected. Can you please help us.