A power of attorney is a legal document which allows another person, known as an agent, to act on behalf of the person who executed the document, the principle, in legal or financial matters. A regular power of attorney becomes invalid if the principle become mentally incapacitated, while a durable power of attorney endures beyond the principle's incapacity. Overriding a power of attorney requires a close review of the document, knowledge of its authority and limitations and willingness to go to court if necessary.
Retain the services of an attorney who is experienced in elder and disability law.
Examine the power of attorney with your lawyer. Ascertain whether it is a regular or durable power of attorney. Check to see whether there is a specified date after which the power of attorney is no longer in effect. These facts will dictate your next steps.
Read More: General Power of Attorney State Law for Kentucky
Speak to the principle, if he or she is still mentally competent. Share your concerns about the agent with him or her. A competent principle can revoke a power of attorney at any time. While a verbal revocation is legal, it's better if the principle writes "revoked" across the document, dates it, signs it and sends a certified copy to the agent and to any agencies that have copies of the power of attorney on file.
If a competent principle refuses to revoke the power of attorney, you may need to enlist the aid of the court. Talk to your lawyer about what options you may have left.
Have your lawyer notify the agent that the power of attorney is no longer in effect if any of the following conditions apply: the document is a regular power of attorney and the principle is now mentally incompetent, the document contains a termination date that has passed or the document has been revoked by the principle.
Ask the agent to step down. This request is best made through your attorney. An agent who is guilty of abuse, neglect or exploitation will often disappear quietly rather than face a court hearing. If the document lists an alternate agent, that person then becomes the one to make medical and financial decisions. If no alternate agent is listed, you will need to go to court to get a guardian and conservator appointed to look out for your loved one's interests.
Have your lawyer petition the court to set aside the power of attorney and grant you or another person guardianship or conservatorship over the incapacitated principle. Be prepared to pay several thousand dollars if the case goes to court.
- Getting the court to override a power of attorney is no easy matter. Since the power of attorney reflects the principle's wishes, courts are very reluctant to set it aside. You must usually provide compelling proof that the agent is abusing, neglecting or exploiting your loved one or that he is being grossly negligent.
- When retaining an attorney, verify that he or she is willing to handle a "contested" case and appear in court if necessary.
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