Spouses and partners chosen by adult children often lead to estate planning challenges. In one case, a parent worries that her daughter’s second husband may influence decisions she may make in the future about her mother’s finances or care. As a result, the parent wants to revoke the power of attorney originally granted to a daughter. “Can I revoke a Power of Attorney” is a question Beck & Lenox Estate Planning & Elder Law hears fairly frequently. How to do that legally and without any hurt feelings is examined in the article “Estate Planning: Revoking a power of attorney” from nwi.com.
A Power of Attorney (POA) is a document that allows another person to act on your behalf. The person designated is referred to as the “Attorney in Fact” or the “Agent.”
The problem this family faces, is that any revocation of a POA must be in writing, must identify the person who is to be revoked as the POA and must be signed by the person who is revoking the POA. Here’s where the hurt feelings come in: the revocation is not legal, until and unless the agent has actual knowledge of the revocation.
You can’t slip off to your estate planning lawyer’s office, revoke the POA and hope the family member will never know.
Another way to revoke a POA is to execute a new one. In most states, most durable POAs include a provision that the new POA revokes any prior POAs. By executing a new POA that revokes the prior ones, you have a valid revocation that is in writing and signed by the principal.
However, a daughter who is duly appointed must be notified. If she is currently acting under the POA and has a copy of it, there’s no way to avoid her learning of the parent’s decision.
If, however, the daughter has never seen a copy of the POA and she is not currently acting on it, then you may be able to make a new POA without notifying her. However, it may create a sticky situation in the future. Notification may be your only option.
If the POA has been recorded for any reason, the revocation must reference the book, page and instrument number assigned by the recorder’s office and be recorded. If the POA has been provided to any individuals or financial institutions, such as banks, life insurance companies, financial advisors, etc., they will need to be properly notified that it has been revoked or replaced.
Two cautions: not telling the daughter and having her find out after the parent has passed or is incapacitated might be a painful blow, with no resolution. Telling the daughter while the parent can discuss the change may be challenging but reaching an understanding will at least be possible. A diplomatic approach is best: the parent wishes to adjust her estate plan and the attorney made some recommendations, this revocation among them, should suffice.
Not revoking the power of attorney correctly could also lead to an estate planning disaster, with the daughter challenging whoever was named as the POA without her knowledge.
Talk with your estate planning lawyer to ensure that the POA is changed properly, and that all POAs have been updated. The attorneys at Beck & Lenox encourage clients to review their estate planning documents every 3 years or so, in case their circumstances or family dynamics have changed.
Reference: nwi.com (March 7, 2021) “Estate Planning: Revoking a power of attorney”