Posted by Gina Salamone
There are a few legitimate reasons why family members may want to change an aging loved one’s power of attorney designation, or remove themselves from their responsibilities as POA. Of course, changes are easy to make if the principal is still mentally competent and wishes to name someone else (known as the agent) to act on their behalf. However, things can get complicated when a loved one is incapacitated and family members believe that a change is in order.
There are a couple of different ways to go about this, but it depends on how a person’s POA document is written and what the desired outcome is. Two of the most common scenarios are when a caregiver no longer wishes to serve as POA for a loved one and when a family member wants to challenge the legality of the current POA’s actions.
What to Do if You Want to Resign as Power of Attorney
Any caregiver will tell you that this responsibility is not for the faint of heart. There are many reasons why an agent may need or want to step down as POA. Perhaps they have moved out of state and are too far away to effectively manage a loved one’s medical and financial affairs. In some cases, the principal may be abusive and the agent must resign in order to safeguard their own physical and mental health. Acting as a person’s agent is a serious legal responsibility and, regardless of the reason, it is important for an agent to resign if they feel they cannot carry out their duties.
To resign, an agent must compose a formal letter notifying the principal, any co-agents and all parties with which the original POA has been filed, such as banks, elder care providers, etc. While each state has different rules for relinquishing POA, taking formal steps to notify all involved parties offers the most protection from any legal issues. It’s best to sign the resignation letter before a notary and then send copies of it via certified mail with return receipt requested. In this letter, you’ll want to include your full name, the principal’s full name, the date that the original POA document was signed and the date you will terminate your position as an agent. An attorney can help you draft this document easily and at minimal expense if you need help.
Can a POA transfer authority to Someone Else?
The process of resigning as an agent is not particularly difficult, but it can have serious implications for the principal. Who will assume the agent’s responsibilities? If a successor is listed on the original power of attorney document, then he or she will become the new acting agent. It would be wise to cancel the original POA and have a new document drawn up, directly naming the successor as the new agent. However, this is only possible in cases where the principal is still of sound mind. POA can be difficult to “prove” and have accepted by certain entities like banks, so a simple and straightforward document naming the new POA is ideal.
Naming a successor agent (or two) is recommended when establishing the original POA document. It gives the principal a legal back-up plan in case the original agent resigns, becomes incompetent themselves or passes away. If no successor is listed on the original POA document and the principal is already incapacitated, then there are few options left. Unless the document grants the original agent the specific ability to delegate powers to another individual, the general rule is that no, the named agent may not transfer POA. Guardianship is the only other option for passing on this responsibility.
How Guardianship Factors Into Resigning POA
Continuing with the scenario above, an interested family member or friend would have to petition the court for guardianship of the incompetent principal to ensure that their medical and financial affairs continue to be managed responsibly after the original agent resigns. This is a lengthy and expensive process that should only be considered as a last resort, but sometimes there is no other choice.
If no other individuals are interested in or capable of serving in this role, then the principal may wind up as a ward of the state and under public guardianship. A concerned party, such as a physician or Adult Protection Services (APS), may file a referral to a local public guardianship service provider indicating that the indigent and/or incompetent adult requires assistance making medical, financial, and/or daily living decisions. Information is collected about the incapacitated individual and a hearing is conducted to determine if they meet the legal guidelines for public guardianship and rule out the possibility of another suitable person serving as their private guardian. Guardianship in any case is not ideal. It is costly and time consuming and it strips wards of their independence and many personal rights. However, it is sometimes necessary to protect vulnerable adults from neglect and abuse.
Contesting a Power of Attorney
Guardianship can also play a significant role when a person wishes to challenge a current POA. This may be appropriate if you know or suspect that an agent has abused their authority and you wish to take over their duties. Again, going to court to prove that a POA document is invalid or that an agent has mismanaged a principal’s funds or neglected their needs can be a long, expensive and emotional process. These suspicions must be proven in court and, if the agent is removed and the principal is deemed incompetent, then a petition for guardianship will also have to be filed.
It is crucial to understand how power of attorney documents work and carefully consider who to appoint as an agent. Guardianship is an important method of protecting vulnerable seniors, but it should only be used as a last resort. Ultimately, every caregiver’s focus should be on meeting their loved one’s needs and safeguarding their wellbeing. It is imperative to take action if any agent, whether it is yourself or someone else, is unable to handle this responsibility.