how to contest a durable power of attorney

Filing a Petition to Contest the Power of Attorney. The next step in the process of contesting the power of attorney is to file a petition with the state district court who has jurisdiction over the principal’s residence. In this petition, your attorney will seek revocation of the power of attorney and state your reasons for contesting it.

Full Answer

Why do clients contest power of attorney?

Based on claims of abuse, we help clients contest power of attorney every day. The most common reasons families seek to invalidate powers of attorney are for abuse by the Agent of the Principal in taking the Principal’s properties for themselves.

What happens if you challenge a power of attorney?

If you win, the court will issue an order revoking the power of attorney or appointing you as the principal's guardian, depending on the content of your petition. Check your state's statute of limitations before seeking to challenge a power of attorney -- it may have already expired.

How do you amend a durable power of attorney?

There is no accepted way to amend a power of attorney. If you want to change or amend a durable power of attorney, the safe course is to revoke the existing document and prepare a new one. Don't go back and modify your old document with pen, typewriter or correction fluid—you could throw doubt on the authenticity of the whole thing.

Does a durable power of attorney have to be recorded?

If you recorded the original durable power of attorney at your local recorder of deeds office, you must also record the revocation. But even if the original durable power of attorney was not recorded, you can record a revocation if you fear that the former attorney-in-fact might try to act without authorization.

What happens if you win a power of attorney?

If you win, the court will issue an order revoking the power of attorney or appointing you as the principal's guardian, depending on the content of your petition.

What is a power of attorney?

A power of attorney allows an agent to perform legal acts, such as consenting to medical treatment or selling property, on behalf of another person. Since the person granting the power of attorney, known as the principal, has the authority to revoke it at any time, as long as he is mentally competent and able to communicate, ...

How to revoke a power of attorney?

File a petition with the branch of the state district court with jurisdiction over the principal's residence, seeking judicial revocation of the power of attorney and alleging your grounds for seeking revocation such as failure to notarize, or abuse of authority by the agent. Alternatively, you may seek an appointment as the principal's legal guardian, so that the agent cannot perform any acts on behalf of the principal without your consent.

What to do if a discovery request refuses to cooperate?

If the recipient of a discovery request refuses to cooperate, you may ask the court to issue an order to produce the records you seek. Subpoena any witnesses who might provide favorable testimony -- a bank officer, for example, or a doctor. Attend the hearing and present your case. If you win, the court will issue an order revoking the power ...

How many witnesses are required to sign a document?

Other states require the presence of two witnesses, who must sign the document. Some states, such as New York and Pennsylvania, require the document to include certain statutory language. Identify any abuses that you suspect the agent has committed.

What is a power of attorney?

A power of attorney is a tool to be considered when planning for the long-term care of an individual or an estate. It is a handoff of decision-making authority if and when such assistance becomes necessary.

Why is it important to have a power of attorney?

It is important to establish powers of attorney when you, as principal, are of sound mind and decision-making ability. You should choose someone you fully trust to understand your wishes and to carry them out along with the other responsibilities of the POA. This is usually a spouse, adult child, a close friend, or business partner, but may be an entity such as a trust, corporation, or governmental agency.

How to prove undue influence?

Establishing undue influence requires proving four elements: 1 Vulnerability of the victim. This might be a diminished mental condition under an existing POA, but could also include vulnerability due to illness, injury, disability, age, education, impaired cognitive function, emotional distress, isolation, or dependency. 2 Apparent authority of the wrongdoer, i.e., status as a fiduciary, family member, care provider, health care professional, legal professional, or spiritual adviser. 3 Actions and tactics of the wrongdoer, or how they controlled and manipulated the victim. 4 An inequitable result, i.e., acquisition of the POA or improper acquisition (s) through the authority of the POA. For example, the court may consider a divergence from the victim’s prior intent and/or the appropriateness of the POA in light of the length and nature of the relationship.

What is a conditional power of attorney in California?

In California, a power of attorney becomes a conditional or “springing” power of attorney by including the phrase: “This power of attorney shall become effective upon the incapacity of the principal.”. With a power of attorney in place, the agent can immediately step in and make any decisions the principal would have made if he or she had not been ...

What is a POA?

A power of attorney (POA) may be broad or narrowly drawn, but POAs are typically established to address financial and healthcare decisions.

How does an agent obtain a power of attorney?

This alleges that the agent obtained a power of attorney through some contrivance that convinced that principal to act against his or her own best interests. Undue influence refers to a situation in which one person uses their position of power to take advantage of another person, such as by persuasion, threats, or coercion.

When are nondurable powers of attorney revoked?

Nondurable powers of attorney are automatically revoked if the principal becomes physically or mentally incapacitated. In estate planning, which includes making plans for an individual’s future incapacity, all powers of attorney are established as durable. In California, a power of attorney becomes a conditional or “springing” power ...

How is power of attorney abuse resolved?

Plus, most power of attorney abuse situations are resolved through negotiated settlement or mediation, and a l court trial never even occurs. Why? Supervised by a probate litigation attorney, settlement proceedings are faster and less expensive than going to court.

What is a power of attorney?

Power of attorney is a legal contract that gives a person, the Agent, the power to make legal decisions on the behalf of somebody else, the Principal. For example, a busy adult may give their financial planner a power of attorney to make financial decisions for them, including buying and selling stocks. Frequently, a power of attorney is given ...

What to do if you suspect power of attorney abuse?

If you suspect power of attorney abuse, contact a probate litigation attorney immediately. Like at RMO, LLP, most experienced probate litigation attorneys will offer a free consultation to help answer your questions. For a free consultation, call us anytime at: (424) 320-9444

Why do people invalidate powers of attorney?

The most common reasons families seek to invalidate powers of attorney are for abuse by the Agent of the Principal in taking the Principal’s properties for themselves. In many cases, these abuse issues can be resolved through negotiated settlement or mediation, without even having to go to court.

What happens when a principal gives power of attorney to a child?

However, if a conflict arises between the Principal’s children, then the power of attorney that one child holds often leads to even more, often highly emotional, conflicts. Ex., if Principal gives power of attorney to Responsible Child who has a strained relationship with Irresponsible Child and Irresponsible Child learns ...

What happens if an agent denies abuse?

If the Agent denies the abuse, and civil court is required, then the costs and time increase and can be substantial. However, if the case is going to civil court, the expectation is that the financial value of assets that will be recovered will exceed the attorney fees and costs.

Can an agent gain anything from a power of attorney?

An Agent is not supposed to directly gain anything, when acting with power of attorney. California law dictates that that the Agent is only to act in and for the best interest of the Principal. The moment the Agent acts in a way that results in their own personal gain instead of the Principal’s it’s time to investigate whether they have committed ...

What is POA in banking?

A power of attorney (POA) is one of the most powerful (and potentially risky) documents one can sign: It gives a third party " agent " the ability to control the assets of the "principal" as if the agent were the principal. Depending on how broad the POA is, that could mean anything from controlling one's financial accounts to controlling everything: healthcare decisions, investments, property, and accounts.

Can a principal grant a power of attorney?

Just as a principal can grant a power of attorney to anyone of their choosing, it is usually up to the principal to revoke that grant. If you want to step in, and have a court override the principal's decision, you're going to need to give the court a good reason for it: dementia, psychiatric issues, or some other form of mental incapacity.

Can a POA be invalidated?

Even if all the boxes are checked, the letters dotted and crossed, and notary seals affixed, a POA can still be invalidated if the agent is abusing his or her authority. Examples might include:

Can a principal revoke a POA?

As you might expect, that doesn't always happen. And if an agent is abusing his or her power, and the principal can't revoke the POA (a typical example would be a principal who is mentally incompetent), you might want to challenge that POA in court.

What happens if you lose a power of attorney?

If you lose your signed power of attorney document, it's wise to formally revoke it, destroy any copies and create a new one. Very few people are likely to accept your attorney-in-fact's authority if they can't look at the document granting the authority.

Who can revoke a power of attorney?

Only you, or someone a court appoints to act for you, can revoke your power of attorney

What happens if you don't make a new document?

If you don't make a new document, your attorney-in-fact may run into problems that are more practical than legal. For example, the document may need to be recorded with the local land records office in the new state.

Can you amend a power of attorney?

There is no accepted way to amend a power of attorney. If you want to change or amend a durable power of attorney, the safe course is to revoke the existing document and prepare a new one. Don't go back and modify your old document with pen, typewriter or correction fluid—you could throw doubt on the authenticity of the whole thing.

Can you record a revocation of a durable power of attorney?

If you recorded the original durable power of attorney at your local recorder of deeds office, you must also record the revocation. But even if the original durable power of attorney was not recorded, you can record a revocation if you fear that the former attorney-in-fact might try to act without authorization .

Do you have to notify the former attorney in fact of a revocation?

It's not enough to sign a revocation, or even to record it, for it to take effect; there's one more crucial step. You must notify the former attorney-in-fact and all institutions and people who have dealt or might deal with the former attorney-in-fact. Each of them must receive a copy of the Notice of Revocation.

Who is Michael's attorney in fact?

He sends a copy of the revocation to Colette, his attorney-in-fact, but neglects to send a copy to his bank. Colette, fraud­ulently acting as Michael's attorney-in-fact, removes money from Michael's accounts and spends it. The bank isn't responsible to Michael for his loss.

Why is a power of attorney important?

A power of attorney is a powerful legal tool because it allows an attorney-in-fact to perform binding legal acts, such as signing contracts, on behalf of the principal.

How long does it take to challenge an attorney in fact?

Many states impose a statute of limitations on challenging the acts of an attorney-in-fact. The statue of limitations in Kentucky, for example, is five years from the date the act was performed.

How to get legal guardianship over a principal?

Submit any evidence you uncover to the probate court . Petition the probate court for legal guardianship over the principal if the court denies your petition. In many states, an attorney-in-fact must obtain the guardian's permission to perform legal acts on behalf of the principal.

What is a discovery motion?

File a discovery motion with the probate court to compel the attorney-in-fact and any other relevant parties (such as an attending physician) to disclose any information, such as financial or medical records, that would provide evidence to support your petition. Submit any evidence you uncover to the probate court.

How to determine if an attorney in fact is abusing his authority?

Investigate the principal's financial, legal and medical records to determine if the attorney-in-fact has been abusing his authority. An example of an abuse would be if the attorney-in-fact authorized an attending physician to perform an act that is contrary to the principal's wishes as expressed in a living will. If you do not have access to this information and the attorney-in-fact refuses to cooperate with you, you may have to wait until you file a petition with a probate court to obtain this information.

Can a third party challenge a power of attorney?

A third party, however, may have an interest in challenging a power of attorney, especially if the principal has become incompetent due to injury or illness. Examine the power-of-attorney form to determine if it meets state formal requirements for validity. Although state laws differ, most states require a power of attorney to be witnessed ...

What is Durable Power of Attorney?

A Durable Power of Attorney for finances (for simplicity, referred to as a "Durable Power of Attorney") is an instrument by which a Principal appoints another person, the "Agent," to act on the Principal's behalf with regard to the Principal's financial affairs. The execution of a Durable Power of Attorney and subsequent Acknowledgment by ...

Why did the principal execute the Durable Power of Attorney?

The Principal executed the Durable Power of Attorney because of undue influence.

What is a non springing power of attorney?

A non-springing Durable Power of Attorney is typically used for the convenience of the Principal, as it allows the Agent to act when the Principal has capacity ...

What happens if an agent is used improperly?

For example, if used improperly, an Agent can disregard the Principal's best interest and withdraw funds from the Principal's bank accounts for unauthorized purposes, or make transfers or gifts of the Principal's assets to the Agent, the Agent's family members, or others. When such abuse occurs, the Principal, the Principal's presumptive heirs, ...

Can an agent act for his own account?

Although the Agent may have broad authority over the Principal's assets, the Agent cannot act for his or her own account. Unless the Durable Power of Attorney provides otherwise, the Agent is subject to the standards of care applicable to fiduciaries, including the prohibition against self-dealing. [2] .

Can an agent act under a Durable Power of Attorney?

Although the appointed Agent is required to act in the Principal's best interest and solely for the Principal's benefit, it is too often the case that an Agent acting under a Durable Power of Attorney takes advantage of the broad authority granted under the document and acts for the Agent's own benefit. For example, if used improperly, an Agent can ...

Can a principal delegate powers of attorney in Michigan?

Nevertheless, a Principal can delegate to the Agent powers that are quite general and broad enough to cover all of the Principal's financial and property matters.