What Overpowers a Power of Attorney?

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Powers of attorney generally fall within one of two categories: powers of attorney for financial management and power of attorney for health care. Within the financial management category are powers that take effect immediately and those that take effect only upon incapacity. A power of attorney can be a very powerful document, so an attorney should always be consulted before executing one. A number of grounds do exist to invalidate either type of power of attorney.

Challenging a Power of Attorney

  • A court order is required to legally invalidate a power of attorney. Some states have special courts, called probate courts, that handle challenges to powers of attorney, while other states have no specialized courts for such a challenge. In these states, a challenge may be brought at the lower court level, such as at within the municipal or superior court system.

Undue Influence

  • There exists no strict definition of what constitutes undue influence, but it is generally regarded as substituted intent. In other words, the intent of some third party, rather than that of the person executing the power, is said to control the extent of the power of attorney. Generally, undue influence requires evidence that the person executing the power was susceptible to undue influence, that the influencer had the opportunity to exercise undue influence, that the influencer had some motive to exercise undue influence and that the undue influence had some effect on the power of attorney.

Duress

  • Duress is closely related to undue influence, but is generally thought of as a more extreme case of undue influence. Here, the wrongdoer must perform some act, or threaten to perform an act, that causes the person to exercise a power of attorney or influences the extent of that power.

Fraud

  • A power of attorney executed because of fraud is invalid. There are two types of fraud in this context: fraud in the inducement and fraud in the execution. Fraud in the inducement means that the wrongdoer has misrepresented some fact that causes the person to execute a power of attorney. For example, if A promises to grant B a portion of A's land if B executes a power of attorney, but A never intended to grant B the land, the power of attorney could be invalid based on fraud in the inducement. Fraud in the execution means that the person did not know that what she was signing was a power of attorney, or was misled as to the extent of the powers contained in the document.

Incapacity

  • A power of attorney executed by a person who was legally incapable of executing such a power is invalid. Some types of incapacity are recognized by all states, while others vary by state. Being a minor is common example of incapacity. A person can also lack capacity to execute a power of attorney if the person was intoxicated or suffered from a metal delusion at the time of the execution.

References

  • "Lawyer's Guide to Estate Planning: Fundamentals for the Legal Practitioner"; Rush Hunt and Lara Hunt; 2004
  • "Advance Health Care Directives: A Handbook for Professionals"; Scott K. Summers, Carol Krohm; 2002
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