Removing a Person with Power of Attorney

  • Robert S. Thomas,
  •   Estate Planning, Probate
  •   Comments Off on Removing a Person with Power of Attorney

Part of responsibly planning for the future must involve what happens if you should become incapacitated or disabled to the point where you cannot competently make decisions for yourself. A power of attorney is a document designed to address this possibility, and Illinois law allows a person to name an “agent”, who has the power to make health care, financial, and property decisions in the event of incapacitation or disability.

This agent may be a person, a corporation, a financial institution, a trust, or entity, and can carry enormous responsibilities as laid out in the written power of attorney. With these responsibilities comes an incredible duty of care. Sometimes this duty is too much responsibility for an agent, or worse, the agent is incompetent or has bad intentions.

Can a Power of Attorney be Revoked?

Yes. So long as a principal has capacity, a written power of attorney can be revoked or amended by the principal “at any time and in any manner communicated to the agent or to any other person related to the subject matter of the agency”. This means that as long as you still have capacity, there is no real consequence if you change your mind about your agent.

Regarding a health care power of attorney, a principal can also revoke this at any time. This is a little different as it is “without regard to the principal’s mental or physical condition” and by one of the three of acceptable methods:

  • physically destroying the document in a “manner indicating intention to revoke”;
  • a written revocation of the agency by the principal or person acting at the direction of the principal; or
  • by an “oral or any other expression of the intent to revoke the agency” in the presence of a witness who makes a written confirmation of the principal’s intent.

Courts May Remove an Agent

In addition, when an agent fails to meet their duty to the principal, a court can be asked to remove the agent. Specifically, the Power of Attorney Act provides that:

“If the court finds that the agent is not acting for the benefit of the principal in accordance with the terms of the agency or that the agent’s action or inaction has caused or threatens substantial harm to the principal’s person or property in a manner not authorized or intended by the principal, the court may order a guardian of the principal’s person or estate to exercise any powers of the principal under the agency, including the power to revoke the agency, or may enter such other orders without appointment of a guardian as the court deems necessary to provide for the best interests of the principal.”

An Attorney Can Help You

Estate planning involves an understanding of many complex laws and anticipating how to prepare for the unexpected. If you would like legal guidance in planning for the event of a disability or incapacitation, or if you have been given the tremendous duty of serving as an agent, contact my office. I will offer relevant, comprehensive advice so that you are in a position to make well-informed decisions. Call The Law Offices of Robert S. Thomas at 847-392-5893 to schedule an appointment or visit our website today.

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