A Power of Attorney (POA) authorizes someone to act on your behalf and make decisions when you are unable to do so in areas such as real estate, business, finance, and more. With a POA, you (the principal) designate beforehand who will act on your behalf. A person acting on your behalf is called an Agent or Attorney-in-Fact.
A POA can take the following forms depending on the situation:
- Limited: Giving power for specific circumstances, such as to pay bills.
- General: Giving all rights that the principal held before becoming incompetent.
- Medical/Healthcare: Making medical decisions on behalf of the principal when the principal cannot.
POAs can be durable or springing, with the difference being the duration they last.
Choosing an agent or attorney-in-fact is important because that person will make short- or long-term decisions on your behalf from the moment you sign the POA. Because of that, the person making decisions for you should be honest and trustworthy and have your best interests at heart. Most people choose a spouse, adult child, relative, attorney, or trusted friend.
No matter who you choose, the attorney-in-fact in the POA may need to be changed. The principal (if not incapacitated) may amend or revoke the POA at any time. Legal advice can be helpful when changing or revoking a POA in most states. If you are in Georgia, please visit here to get help with POA changes. Here are some general tips on changing the attorney-in-fact in your POA.
When Can You Make a Change?
Unless you are incapacitated, your POA doesn’t take effect. Often, years pass between when you sign a POA and when it is used. Once you have signed the POA, or even afterward if you are still competent mentally, you can make changes to it. The authority of an agent can be changed when:
Moving to Another State or Country
A POA should be revoked and a new one created if you move to another state, following the regulations of your new state. Although your old POA may be acceptable under your new state’s law, your attorney-in-fact may face some issues with the old one. Alternatively, if the attorney-in-fact moves to another country, it may not be practical or possible for him/her to continue to act for the principal.
Separation or Divorce
Divorce nullifies power of attorney in many states, including Georgia. A legal separation or dissolution or annulment of an agent’s marriage to the principal can cause the termination of your spouse’s authority to act on your behalf. As a result, any alternate you have named would serve as the attorney-in-fact, or you may wish to create a POA that allows you to name a new attorney-in-fact.
Resignation, Sickness, and Death
In the event that your attorney-in-fact declines to act or resigns, the other attorney-in-fact (in a joint arrangement) or the substitute (if one is named) takes over. Another alternative is to appoint a new attorney-in-fact. When the attorney-in-fact becomes incapacitated or passes away, a replacement must be appointed.
Acts of the Attorney-in-Fact
When the attorney in fact is causing the principal hardship (such as non-compliance with POA terms, neglecting assets, breach of fiduciary duty, excessive fees, etc.), the principal can remove that attorney-in-fact and appoint someone else.
Special Instructions in the POA
When the POA is drafted, the principal may specify an exact date and time to end the power. It also allows you to terminate your agent’s authority if you set specific conditions. For instance, a financial POA that only permits your attorney-in-fact to make decisions related to the sale of a specific property.
How to Change an Agent/Attorney-in-Fact
Compared to other legal documents, changing an attorney-in-fact is relatively simple. It is best to change your attorney-in-fact immediately upon a change of circumstances. The key is to do it properly and promptly so that the old POA does not impact your status (estate, financial, or otherwise). Here are the steps to take:
Put Your Decision in Writing
If you would like to revoke your agent’s privileges immediately, you can do so verbally, then follow up with paperwork. Just verbalizing your wish opens the matter up to interpretation and question. Written revocation is preferable. This can be done by using a revocation notice form that includes the following information:
- The date when the principal revokes the power
- Information about the principal
- The specific powers granted to the agent in the previous documents
- Statements that revoke the authority of an attorney-in-fact are mentioned in the POA. A principal does not need to state the reason for revocation.
Signing, Notarizing, and Witnessing the Document
The notice of revocation must be signed and dated. Witnessing is a prudent idea if you have reason to think someone will later question your mental competence to carry out the revocation. In front of a notary public and witnesses, sign the notice of revocation. Record the revocation of the durable POA with your local recorder of deeds office if you recorded the original with them. Organize and store all documents safely in a place where the attorney-in-fact and/or executor of your will can access them.
Finally, the principal should send copies of the revocation of the POA to the individual whose power was revoked and to all institutions and people with whom the former attorney-in-fact has dealt or may deal. Send it to the attorney-in-fact via certified mail (proof of delivery). In Georgia, a written notice must be filed with the county clerk in the county of residence (where the principal lives).
It is relatively simple to modify an attorney-in-fact as compared to other legal documents. If your circumstances change, you should change your current attorney-in-fact immediately. The key is to do it properly and quickly to avoid any unwanted situations. You can revoke your POA at any time by sending a written notice to your attorney in fact. Make sure that all updated documents are saved safely and shared with relevant parties.