Yes! You can change or amend your power of attorney at any time during your lifetime. Possibly you have changed your mind about the person you chose to make decisions for you under a durable power of attorney. To make changes to your Power of Attorney, however, you must have sufficient mental capacity. If there is any question in regards to mental capacity, it is essential that you speak to a qualified estate planning attorney. A doctor’s evaluation may need to be done prior to making any changes to your power of attorney.
Assuming you have sufficient mental capacity, there is a specific legal process that you must follow to replace there person on your durable power of attorney or make other changes.
Step 1: Draft a New Durable Power of Attorney With the Guidance of a Qualified, Experienced Estate Planning Attorney
Drafting your power of attorney with the representation of an attorney, especially a certified specialist attorney, ensures that your documents will not only be legally binding but also that they are more likely to hold up in court. I have had cases where a son or daughter was given a power of attorney by their mother or father. They executed the document with a document preparer nor legal assistant, believing that it was more affordable. After the parent died, the child then claims that the parent did not understand what she was signing and had made a “mistake.” This scenario would be much more difficult to do if the parent had retained an attorney to execute the documents on his or her behalf. While anything can be contested later, it is significantly harder to do so when a party was represented by a qualified attorney.
Step 2: Revoke the Previous Power of Attorney
A new durable power of attorney normally revokes any prior power of attorney documents. Nevertheless, you should make sure that your new document provides that “any and all prior documents are being revoked”. In certain situations, your prior attorney-in-fact may have to be notified that the durable power of attorney naming them has been revoked. Again, consulting with an experienced attorney is recommended to ensure all proper notifications are sent out.
Do any financial institutions have a copy of your prior power of attorney? If so, a copy of the new power of attorney should be sent to them. Businesses, organizations, and persons not knowledgeable about a revocation cannot be held legally liable for any actions taken based on the power of attorney they possess.
Good practice to consult with an estate planning attorney when drafting a new power of attorney should you wish to revoke an existing one. The cost of proper estate planning is small when compared to the costs of making a mistake that requires court intervention.
For questions about durable powers of attorney, or other estate planning documents, please contact David A. Arietta, certified estate planning attorney, at (925) 472-8000.