Q: A few years ago, I appointed my daughter power of attorney. She has since remarried and I’m concerned that her husband will influence her. How do I withdrawal the power of attorney without telling her? I don’t want to hurt her feelings.
A: Yeah; this is a tough one. Unfortunately, there may not be an easy answer without someone’s feelings getting hurt.
First, I want to clear up some the language in your question. You don’t actually appoint someone power of attorney (POA). A POA is a document that you execute that allows someone to act on your behalf. The person that you designate is the known as the attorney in fact. I suppose that you can grant someone POA but you don’t actually appoint a POA.
Here is the problem that you have. A revocation of a POA has to be in writing, identify the revoked POA and be signed by the principal. Now here’s the kicker: the revocation isn’t effective unless the attorney in fact has actual knowledge of the revocation.
In my opinion, the best way to revoke a POA is to execute a new one. As a general rule, most durable powers of attorney include a provision that states that the new POA revokes prior POAs. By executing a new POA that revokes the prior ones, you have a valid revocation that is in writing and signed by the principal.
The notice is the tough part. If your daughter is a duly appointed and acting attorney in fact and you want to remove her, you’re going to have to give her notice. If she has a copy of the POA and she is currently acting under it, notice can’t be avoided. No notice, no revocation.
On the other hand, if you’ve never given her a copy of the POA and she doesn’t currently have the authority to act under it, you may not have a problem. If she isn’t currently your attorney in fact, you aren’t required to notify her. I guess the question is, did you give her a copy of the POA and is she operating under it?
Here are a couple of other things to think about. First, if the POA has been recorded for some reason, the revocation must reference the book, page and instrument number that was assigned by the recorder’s office and be recorded. Also, if you have given the POA to individuals or entities, such as banks, you’ll want to notify them also that it has been revoked or replace.
Unfortunately, it's probably going to be an uncomfortable conversation; however, if it has to be done, it has to be done. Just be diplomatic about it. Don’t say you don’t like the dude she’s married to. Maybe you can tell her that you are updating your estate plan and after talking with the attorney, a few changes need to be made to accomplish your goals. Blaming the attorney almost always works.
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.