Legal Issues when someone has Dementia – Revoke prior Powers of Attorney

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25 installment discussed the importance of NOT making the General Power of Attorney “springing.”  To continue the discussion of which Advance Directives to prepare and how to prepare them, today’s installment will discuss revoking prior Powers of Attorney.

This issue applies to anyone revoking a Power of Attorney not just those that have dementia.  For someone with dementia, though, revoking a Power of Attorney has more urgency – more reason for haste – than it does for someone who does not have dementia.

If the principal adopts a new Power of Attorney (whether a General Power of Attorney or a Health Care Power of Attorney,) prior Powers of Attorney are NOT automatically revoked (at least not in Ohio.)  So, if a principal adopts a new Power of Attorney, the old one (perhaps more than one) are still legally valid and active.  To avoid these “battling” POAs, the principal should revoke the prior POAs.

Frequently, a new POA will state that it revokes all prior Powers of Attorney.  That would seem to solve the problem.  It is better to list the prior Powers of Attorney so as to minimize confusion, but as a legal matter, that list may not be necessary.  (Of course, because lawyers want to make sure that all bases are covered, it is wise to use language such as “I hereby revoke all prior General Powers of Attorney, including, but not limited to the General Powers of Attorney that I previously executed on January 1, 2000; February 1, 2001; and March 1, 2002.”  (A principal should not revoke “ALL prior Powers of Attorney” but should, instead, revoke “all prior General Powers of Attorney” or “all prior Health Care Powers of Attorney.  A principal should specify which type of POA he or she intends to revoke.)

In addition, the principal can sign a document that revokes prior Powers of Attorney even if the new document isn’t itself a Power of Attorney.  As  discussed in the paragraph immediately above, this stand-alone revocation can be a blanket revocation of all prior Powers of Attorney (General or Health Care,) or can list the Powers of Attorney that it revokes, or can do both.

Seems easy, right?  Sign one document, and the out-of-date POAs get revoked.  No sweat.

Of course, it’s not that easy.

Just because the principal has revoked an old version of the Power of Attorney, the person reading the POA doesn’t know that it has been revoked.  Revoked POAs don’t simply disappear.  They don’t shrivel up and disintegrate.  They don’t instantly have “REVOKED” printed on them.

The agent named in a now-revoked POA may not be happy about being replaced.  That deposed agent may use the authority in the old POA to take actions with the principal’s assets.  The bank or investment office or real estate agent (or anyone else, for that matter) has no way to know that the POA has been revoked.  (Not many former agents would act out in this manner, but those few that would certainly can hurt their principals.)

To avoid an old POA being accepted as current, there are practical steps (in addition to the legal steps) to revoke an old POA.

The principal should try to retrieve all of the copies of the prior POAs.  Retrieving all of them can be a daunting task if there are a number of copies.  (Most POAs have a statement that a copy is to be honored just like an original, so retrieval of copies is important.)

After the copies of the prior POA have been retrieved, most of them can be destroyed.  I suggest that the principal keep one of them.  It should be marked “REVOKED” in prominent letters on each page (especially the front page and the signature page) along with the date of the revocation.  I suggest keeping the old POA because it might at some point be necessary to prove that an agent’s action prior to the old POA’s revocation was valid, and the old POA might be necessary to prove that validity.

In addition, notice of the revocation should be provided to the principal’s bank, investment office, etc.  (or doctor’s office, hospital etc. for a Health Care POA.)  Similarly, notice of the revocation should be provided to all prior agents and successor agents.  (The notice to so many people makes a stand-alone revocation better than a revocation inside the new POA.  The revocation can be copied and sent around without having to send around a large number of copies of the new POA because that new POA might need to be revoked in the future.)

So, with possible revocation in mind, new POAs (and first POAs, for that matter) should not be spread far and wide.  They might have to be retrieved later.  The principal should keep an original.  The primary agent should keep an original.  The attorney who prepared it should probably keep an original.  Maybe the first one or two successor agents should have an original.  In any event, the principal should keep track of where he or she sends originals and copies so that they can be retrieved later, if necessary.

Yeah, that’s a pain in the neck.  Sorry, but I it might be necessary to have that list in case you change your POA in the future.

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