QUESTION
When can a person who has Power of Attorney act? How do you remove a person who has Power of Attorney?
Asked on Aug 02nd, 2013 on Estate Planning - California
20 ANSWERS
Bankruptcy Attorney serving Florissant, MO
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Law Offices of Thomas Corcoran Phipps
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The attorney-in-fact can act anytime. The attorney-in-fact has to resign or the principal has to revoke the power.
Answered on Aug 19th, 2013 at 7:18 PM
The person who has power of attorney can only perform those actions which are listed in the document granting those powers and signed by the grantor. The document should also indicate when the person has the authority to act - it can range from only during certain circumstances (the grantor is out of town or incapacitated and in the hospital) to all the time (such as ffor an elderly relative who is having difficulty taking care of his or her affairs). The attorney in fact can be removed at any time by the grantor or by a court that has determined that the attorney in fact has not been handling the grantor's affairs properly.
Answered on Aug 09th, 2013 at 10:03 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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A POA usually goes into effect as soon as it is signed. It can be revoked or amended at any time.
Answered on Aug 09th, 2013 at 10:03 PM
Corporate & Incorporation Attorney serving Huntersville, NC
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Elliott Law Firm, P.C.
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As far as when a person can act is dictated by the terms of the POA document. Some POA's are what is known as "springing POAs" which means they only come into effect if and when the person on whose behalf you would act becomes incapacitated. If the document contains no such provision, then it comes into effect when it is signed and recorded. On removal, NCGS 32A-13 gives the parameters of revoking a POA.
Answered on Aug 09th, 2013 at 10:03 PM
Business Law Attorney serving Bingham Farms, MI
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James T. Weiner, P.C.
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A person with a POA (attorney-in-fact) can act any time for the grantor of the POA However the grantor can overrule the attorney in fact and can withdraw the POA at any time as long as they do it in writing(if the grantor is unable to act say he she is demented and unable to make decisions it takes a lawsuit in the probate court) further under Michigan law the attorney in fact MUST act in the grantors best interest.. they have a fiduciary duty to the grantor.
Answered on Aug 09th, 2013 at 10:03 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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Depends on the power, and the competency of the person who granted it.
Answered on Aug 09th, 2013 at 10:03 PM
Probate Attorney serving St. Louis, MO
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Edward L. Armstrong, P.C.
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Notify the person who has the power of attorney, in writing, that you are revoking the power. If there was any type of recording or publication that the power was granted that recording should be amended as well by recording the revocation. This is not normally done (amending a recorded power) because it's been years since Missouri required that a durable power of attorney be recorded in the recorder of deeds office.
Answered on Aug 09th, 2013 at 10:03 PM
Estate Planning Attorney serving Wilmington, DE
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Reger Rizzo & Darnall, LLP
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Some powers allow you to act immediately and others are contingent on health of principle
Answered on Aug 09th, 2013 at 10:03 PM
To know when the agent in a Power of Attorney can act, you need to read the Power of Attorney. Is it currently effective or a springing power? Is it a normal power or durable? These questions can be answered by an attorney specializing in estate planning. As far as removing an agent, that can be done either by the principal (the person who made out the Power of Attorney) or by the Court.
Answered on Aug 09th, 2013 at 10:03 PM
Estate Planning Attorney serving Nashville, TN
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Strickland Law, PLLC
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The named attorney-in-fact? can perform the duties specified under the power of attorney, and act when the power of attorney provides. For example, it might become effective only at the incapacity of the principal, or it could become effective upon signing. The document controls. To revoke, draft a notice of revocation, and file with the county clerk's office. Also, provide a copy to the attorney-in-fact, financial institutions and the like.
Answered on Aug 09th, 2013 at 10:03 PM
The ability to act under a power of attorney depends on the document. Some are effective as soon as they are signed; some have "springing" provisions which only allow them to become effective upon the occurrence of some specific event, i.e. letters from two physicians declaring the maker of the document is no longer competent to make decisions on his/her own. The power is revoked when the maker of the document sends letters to the people relying on the power of attorney notifying them he/she is revoking the power and a letter to the attorney-in-fact that their power is revoked. Any actions which take place prior to the revocation cannot be undone.
Answered on Aug 09th, 2013 at 10:03 PM
Personal Injury Attorney serving Overland Park, KS
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Ankerholz & Smith
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A Power of Attorney will specify when it becomes effective. Many are effective as soon as they are signed. Others become effective upon the proven disability of the person granting the authority. Some Powers of Attorney may expire after a certain act is performed, after a certain date, or when the person granting the authority becomes disabled. Other Powers of Attorney are effective indefinitely, until the death of the person granting the authority. Powers of attorney are also revocable, which normally will be done in writing.
Answered on Aug 09th, 2013 at 10:02 PM
The person holding the power of attorney can act as specified in the written document. In most states, the POA terminates at death. Most POAs can be terminated at any time by the person who granted them at any time, by a written document. Some POAs are coupled with an interest, and cannot be so easily terminated. I would need to look at the language of the POA to properly answer your questions.
Answered on Aug 09th, 2013 at 10:02 PM
Thomas Edward Gates
The person who gave the power of attorney only needs to tell the person they are no longer serving in that role. If it was filed with the recorder's office, they will need to file a revocation of the power of attorney.
Answered on Aug 09th, 2013 at 10:02 PM
Admiralty / Maritime Attorney serving Monrovia, CA
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The Law Office of Nathan Wagner
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A person who has a power of attorney is called an "attorney-in-fact". They can act only during the lifetime of the person who gave them power of attorney. The person who gave them power of attorney can revoke the power at any time.
Answered on Aug 09th, 2013 at 10:02 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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The person can act whenever the POA says that he/she can. Generally that is when the principal becomes incapacitated. The form can provide for immediate effect, however. You remove that person by going to court to become appointed guardian and conservator.
Answered on Aug 09th, 2013 at 10:02 PM
3 Awards
Very good question. A person who has Power of Attorney (commonly known as the "attorney-in-fact" or "agent") can act only pursuant to the terms of the document granting the power of attorney. Some powers of attorney are effective immediately upon signing and other powers of attorney are "springing," meaning that they "spring" into force upon the happening of some defined event, such as at the time the principal (the person granting the power of attorney) becomes incapacitated. A common springing provision in a power of attorney would make the power effective upon a physician (or maybe two (2) physicians) certifying in writing that the principal is no longer capable of handling their own affairs and decisions. To remove an attorney-in-fact (the person who has power of attorney), it would be important to review the terms of the document granting the power of attorney. Most power of attorney documents provide for the termination of the power of attorney on a certain date, or state that the power will be revoked only upon the written termination by the principal. Again, the document should provide a mechanism for removing the agent. If this is not clear or easily done, a court action may be initiated to remove the agent on some other basis, such as if the agent is misusing the power of attorney or in some other way breaching his or her fiduciary duty. It would be a good idea to consult with an attorney to discuss the options for removal or revocation. Most attorneys would give a free phone consultation to determine what might be done, if anything.
Answered on Aug 09th, 2013 at 10:02 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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The person giving the power can remove the power at any time, and should do so immediately.
Answered on Aug 09th, 2013 at 10:02 PM
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It depends upon what the power of attorney says. Unless you are the person who gave the agent the power, you cannot remove them. If you think they are doing something wrong with regard to a person who lacks capacity, go to court and get a conservatorship.
Answered on Aug 09th, 2013 at 10:02 PM
3 Awards
Both issues are generally governed by the actual power of attorney document. If uncertain you should speak with an attorney about next steps and options.
Answered on Aug 09th, 2013 at 10:02 PM