Q: Does a power of attorney ever terminate, or do I have to hire an attorney to remove someone that I no longer trust and refuses to give up the POA?
A: There are basically three ways that a POA terminates.
The first is the date and time specified in it. POAs rarely have termination dates because they are usually intended to be durable. However, under certain circumstances, a POA can have a termination date that would effectively void the document after that date.
Assuming the POA doesn't have a termination date — and I'd be willing to bet it doesn't — the second way that a POA is terminated is at the death of the principal. Once the principal passes away, the attorney-in-fact's authority terminates, with the possible exceptions of making anatomical gifts on behalf of the principal, the authority to request an autopsy, and the authority to make final arrangements. Except for those limited exceptions, death of the principal terminates a POA.
I'll assume that the POA does not include a termination date because it probably doesn't. I'll also assume that because you emailed me, you're still alive. That leaves one other way to terminate a POA: a written revocation.
A POA can be revoked if the principal executes a written revocation identifying the POA. However, in order for the written revocation to be effective, the attorney-in-fact has to receive actual knowledge of the revocation. Until he or she receives actual knowledge, the revocation isn't effective.
In your situation, I'd start by revoking the POA using a written instrument. I'd mail the revocation via certified mail, return receipt requested, and by U.S. first-class mail. I'd also suggest calling and telling him the POA has been revoked. An email and a text probably wouldn't hurt also.
Finally, send a copy of the revocation to places that he is likely to use it, such as the bank. That way the people most likely to see the POA have notice not to accept it.
If he refuses the sign for the certified letter, and let's face it, he probably will, you can prove that you gave him notice and that he refused to accept it. Refusing to pick up your mail isn't going to be a persuasive argument to prove lack of notice. Plus, you sent it to him in regular mail and it didn't come back.
Once he has been notified of the revocation, it is a violation of law to continue to exercise authority under the POA, and he has liability if he does. He serves at your pleasure, not his.
Experience tells me that if he has already refused to surrender his authority voluntarily, you may have issues. If that is the case, a mildly threatening letter from an attorney would likely be helpful.
Remember that you don't give up any authority when executing a POA, especially the right to revoke it for any reason or for no reason at all. As long as you are competent, you can revoke the POA anytime you want.
Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at www.nwi.com. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chrisyugolaw@gmail.com. Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.