Q: I gave my niece power of attorney. I now want someone else to have it. How do I take back the power of attorney I gave to my niece and give it to someone else?
A: Most general powers of attorney (POA) are legally enforceable documents specifically designed to remain in effect through tough times. Since they are legally enforceable documents, formalities must be followed when revoking them.
Unless the power of attorney states otherwise, and they usually don't, a revocation of a POA must be made in writing. A verbal revocation may not be enough.
Generally speaking, a POA can be revoked in one of two ways. The first way is to revoke the POA by executing a new one. Most POAs contain a provision that revokes all prior and existing POAs. The provision is usually somewhere obvious in the document and very likely on the first page. Assuming the new POA contains a revocation provision, that is enough to revoke the prior one.
If for some reason the new POA doesn't contain a revocation provision, the second way to revoke it is to execute a written revocation of power of attorney document. A revocation will reference the existing POA and the current attorney-in-fact and revoke the document and the powers granted.
Once you have revoked the previous POA, either by executing a new POA or by executing a revocation of power of attorney, you're almost but not quite there. Before the revocation becomes effective, the existing attorney-in-fact must be provided actual notice of the revocation. I usually recommend sending written notice of the revocation to the attorney-in-fact by regular and certified mail. This is especially true if you expect problems from the current attorney-in-fact.
In addition to the actual notice provided to the attorney-in-fact, you may need to record the revocation in the county recorder's office. In order for the county recorder's office to accept documents executed by an attorney-in-fact for recording, it may require the POA be recorded. If the existing POA has been recorded, you need to record the revocation also. A recorded revocation should reference the book, page and instrument number of the recorded POA.
Revoking an existing POA is usually not that big of a deal. Normally, the attorney-in-fact accepts the removal and moves on. However, if you anticipate a problem with the attorney-in-fact, you may want to also send notice to the places that have a copy of the now revoked POA. For example, if you gave a copy of the previous POA to your bank so that your niece could write checks for you, make sure it knows that the POA has been revoked and your niece no longer has that power.
Finally, in the event you have revoked the POA and have given actual notice to your niece and she still refuses to accept her removal, you may have legal recourse against her should she continue to act under the revoked POA. You hope it doesn't come to that, but if it does, you can always place the removed attorney-in-fact on the business end of a lawsuit.
Opinions expressed solely are those of the writer. Christopher W. Yugo is a member of the Indiana Bar and a vice president and senior trust Officer for First National Bank's Trust Department. Address questions to Yugo in care of The Times, 601 W. 45th Ave., Munster, IN, 46321. Yugo's 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.