Circumstances where a power of attorney can be challenged

September 07, 2023 | Estate Planning, Executor or Conservator

Circumstances where a power of attorney can be challenged

A power of attorney is a tool that people can use in California to help ensure that their wishes are respected regarding health and financial issues when they age or face health issues. The person who creates a power of attorney can revoke it at any time. Additionally, different powers of attorney expire at different times. However, some may wonder if they can challenge a power of attorney.

How a power of attorney works

A power of attorney is a legal document that gives someone else the right to make certain decisions on another’s behalf. A power of attorney appoints an attorney or an agent. The individual who prepares the power of attorney, or the grantor, keeps the right to make decisions for themselves. However, in a limited scope, a power of attorney allows the agent to make financial or health care decisions on the individual’s behalf when certain circumstances are met.

Challenging a power of attorney

A person can legally challenge a power of attorney. However, it is a challenging thing to do, and the courts get involved. A third party can challenge a power of attorney by formally requesting a contest in court. Additionally, the agent can decide of their own accord to resign from the position.

An example of when a person may challenge a power of attorney is when one sibling does not feel the other sibling is adequately carrying out their estate planning duties. To successfully challenge a power of attorney, the challenging third party must show that the principal created the document when he or she was incapable of doing so. For example, a third party may prove that the principal had dementia, Alzheimer’s or a mental disease. However, courts require a good reason before revoking a power of attorney.

A power of attorney is a powerful, legally binding document. However, if the principal does not adequately prepare a power of attorney, there will be issues. For instance, if the document is not notarized, does not have the required number of witnesses or does not have the specific language requirements, a third party may successfully challenge it in court.

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