Can I Terminate a Power of Attorney?

AdobeStock_101916297Does a power of attorney ever terminate, or do I have to hire an attorney to remove someone that I no longer trust and refuses to give up the POA?

There are three basic ways that a Power of Attorney (POA) terminates, says in the article “Estate Planning: Revoking a power of attorney.” The first is the date and time that it specifies, if it contains such language. POAs rarely have termination dates, because they are intended to be “durable” over an extended period of time. However, in certain circumstances, they can have a termination date.

The second way a POA terminates, is at the death of the principal. Once the person in the POA dies, the attorney-in-fact authority ends, with the possible exceptions of making anatomical gifts on behalf of the principal, or the authority to make final arrangements or the authority to request autopsy. Except for these unusual exceptions, the POA ends when the principal dies.

The third way a POA terminates, is when the principal executes a written revocation identifying the POA. For it to be effective, the attorney-in-fact has to receive actual knowledge of the revocation. Until they receive that actual knowledge, the POA revocation is not effective.

To ensure that this is done properly, it is recommended that an estate planning attorney be involved, just to make sure there are no mistakes. A letter informing the POA of the revocation must be sent via certified mail, return receipt requested, using U.S. first-class mail. An email and a text follow up could take place, and a phone call would be a good idea. 

To make sure there are no deliberate misunderstandings, send a copy of the revocation to institutions that would be potentially targeted by the now former POA—if that is a concern. This includes the bank, financial advisor or any institution that is of particular concern. You want to make sure that these institutions are notified that the POA is no longer in effect.

If the person refuses to sign the certified letter, you will need to prove that notice was given and that the person refused to sign for it. Refusing mail is not a persuasive argument to prove lack of notice. 

Once the person has been notified of the revocation, it is a violation of law to exercise any authority under it, and the person has liability, if they do so. 

A letter from an attorney may be helpful. Speak with an experienced estate planning attorney to find out if there are any laws in your state that may provide additional protection.

Reference: (Dec. 9, 2018) “Estate Planning: Revoking a power of attorney”

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