The creation of a robust estate plan often includes documents intended to support someone during a medical emergency in addition to testamentary documents that only take effect after someone dies. Advanced healthcare directives can provide crucial guidance regarding someone’s preferences in a medical emergency, and powers of attorney give another individual the lawful authority to handle medical or financial matters on someone’s behalf when they are incapacitated and unable to advocate for themselves.
The goal of creating such paperwork is to have someone an individual trusts take on that position. But, sometimes the agent or attorney in fact named in someone’s paperwork will abuse their power. They might act in a manner that is contrary to someone’s expressed wishes or try to use their position for personal gain.
In theory, well-crafted powers of attorney retain their authority even if someone permanently loses their testamentary capacity. Is there anyone with the potential authority to override powers of attorney when there are concerns about the actions of someone’s agent?
The testator has the authority
Provided that they have not fully lost their testamentary capacity and only experienced short-term medical issues, the individual who drafted the documents originally has the legal authority to override the power of attorney and make their preferences known in regard to their health care and the management of their financial resources.
The courts can also take action
When there’s clear documentation that an agent has acted in their own interests rather than following the instructions, preferences and recommendations of the testator, the attorney representing the testator or members of their immediate family could take the matter to the courts. Courts can sometimes set aside otherwise valid documents when there has been an abuse of authority that undermines someone’s legal rights or when there is proof that an individual has violated their fiduciary duty to the testator.
It is important not only to understand who someone has named in a position of authority in their estate planning paperwork but also the testator’s personal needs and wishes so that the named individual won’t be able to take advantage of that position of authority. Speaking up when it seems like someone has abused their power of attorney may benefit a vulnerable testator and anyone else who depends on them.
