If you believe that a friend or family member's interests are being abused through a power of attorney that individual has created, there are steps that you can take to break a power of attorney. Taking such a course of action assumes that the person who created the power of attorney in the first instance is either unwilling or unable to terminate the power of attorney on her own.
Prepare a petition to set aside power of attorney to be filed in probate or family court. Depending on the laws in your state, either the probate or family court is the proper forum to take up a challenge to a power of attorney. You obtain a sample petition from the court clerk's office to aid you in drafting.
Prepare a motion for a temporary restraining order. If you believe that the agent named under the power of attorney abuses his authority to the detriment of the grantor, you need to attempt to stop him from taking any further action until the court acts on your petition. You obtain a motion form from the clerk of the court.
File the petition and motion for temporary restraining order with the court clerk.
Obtain a signed temporary restraining order from the court. Provided you present sufficient evidence that the welfare of the grantor is at risk, a judge is likely to sign off on a temporary restraining order. The judge also is likely to set the matter for a nearly immediate hearing--in a matter of a couple of days.
Request the court clerk to have the sheriff serve a copy of the petition and temporary restraining order on the agent named under the power of attorney.
List witnesses who support your position that the agent is misusing the power of attorney. The court clerk will issue subpoenas to ensure they appear at the hearing on the petition and restraining order.
Appear at the hearing to present arguments, witnesses and any other evidence to support removing the agent and canceling the power of attorney.
- Consider retaining an attorney to represent you in setting aside power of attorney. A petition to set aside a power of attorney is complicated and an attorney can provide the professional assistance you require.
- "A Practitioner's Guide to Powers of Attorney;" John Thurston; 2007
- 'Lectric Law: Power of Attorney
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