Power of attorney is a legal document granting an agent the power to control a principal’s assets and make major decisions in the same way that the principal traditionally would. A power of attorney could pertain to healthcare and medical decisions, financial assets, investments and more. If an agent fails to do their duty, or a power of attorney document was drafted incorrectly or inappropriately, a third party may be able to challenge the validity of the power of attorney. Here, estate planning attorney, James A. List explains the circumstances where power of attorney may be challenged.
Potential Legal Arguments for Power of Attorney Revocation
A power of attorney is a powerful legal document, but there are ways that its legality may be challenged in court. Here are three of the most common arguments to pursue the revocation of a power of attorney.
A Binding Power of Attorney Was Not Established
Maryland law dictates the formalities for drafting a binding power of attorney document. A power of attorney must be signed, dated, notarized and witnessed by at least two witnesses. The principal must be at least 18 years of age, and they must intend to give the power to the agent designated in the document. If any of the legal formalities mandated by Maryland law are not met, a power of attorney may be challenged in court.
The Principal is not Mentally Competent
For a power of attorney to be legally enforceable, the principal must be mentally competent and must be able to understand the implications of drafting and signing a power of attorney. If the principal was not mentally competent at the time the power of attorney was drafted and signed, it cannot be legally enforced. To prove mental incompetence, a medical professional will likely be required.
The Agent Has Abused Their Authority
The agent designated in a power of attorney has a duty to perform their role to the best of their ability and in such a way that the principal’s best interests are considered. If the agent abuses their authority in some way—often by mismanaging or stealing from the principal’s assets, or by neglecting the best interest of the principal—the agent’s power of attorney may be challenged.
Retaining an Estate Planning Attorney to Challenge a Power of Attorney
A power of attorney document can be a valuable estate planning tool; however, failure to choose a trustworthy or competent agent can lead to serious concerns. The nature and scope of a power of attorney document often makes it difficult to challenge, and so it is critical to hire qualified legal counsel to pursue its revocation. The estate planning attorneys at James A. List Law are not only experienced with drafting power of attorney documents but also with challenging their legal validity in court. If you or a loved one has established a power of attorney, but believe that it was not created in good faith, or that the agent is not performing their duties appropriately, you have the right to challenge its validity—contact James A. List Law today for a free consultation.