Powers of attorney have been mentioned or discussed in this blog several times. “Powers of Attorney”
and “Weaknesses in Powers of Attorney,” in particular, explained the importance of a well-drafted power of attorney. An aspect that has not been discussed is revocation.
The ability to revoke a power of attorney is a major advantage over court-ordered guardianship or conservatorship (guardianship of the person’s worldly estate). A principal who signs a power of attorney may revoke it at any time. A legally-incapacitated person, and even a person who consented to guardianship, cannot revoke the guardian’s appointment. He or she must file a petition with the court to terminate the guardianship. It can be very difficult to persuade the court to terminate a guardianship. Many judges are very paternalistic and in many courts persons who are subject to the authority of a guardian or conservator have very few rights.
As long as the principal is competent, he or she may revoke the power of attorney at any time. Whether or not the principal retains sufficient mental capacity may be a matter of dispute, but unless the principal has clearly lost the ability to make decisions the agent must immediately stop acting for the principal when notified that the power of attorney has been revoked.
A written revocation is not necessary, but it is important to communicate the revocation to the principal’s banks and other third parties with whom the agent may have been in contact. Innocent third parties who continue to deal with the agent are not in the wrong if they have not been notified of the revocation. Therefore, it is helpful to put the revocation in writing and distribute copies to persons and institutions the agent might transact business with.
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2015 John B. Payne, Attorney