A power of attorney is a very powerful document. It gives a third party the ability to control any assets or decisions as if they were the individual themselves. Depending on what the power of attorney states, the agent could be in charge of an individual’s finances, healthcare, property, bank accounts and investments.
But, a power of attorney does have one duty: to act in the best interests of the individual they are representing. Unfortunately, this does not always happen. If you feel a power of attorney is abusing their power and the individual cannot revoke the power of attorney (such as due to mental incapacity), you may be able to challenge it in court.
When the Individual is Mentally Incompetent
Typically it is up the individual to revoke a power of attorney. But, sometimes the individual that assigns an agent this power cannot revoke their decision, such as being mentally incompetent or medically limited (coma). A family member or third party can step in and ask the court to override that decision, but they must prove to the courts that the individual cannot revoke their decision on their own.
This type of challenge becomes a battle of experts. You will need physicians and other experts testifying to the individual’s incompetency and the agent may have their own experts testifying otherwise.
Were Formalities Ignored?
Sometimes a power of attorney can be challenged when certain formalities are not followed, such as using the right language in the power of attorney document, not having the required witness signatures, or notarization.
Not Acting in the Best Interest of the Individual
A power of attorney can be challenged if he or she is not acting in the best interests of the individual they are representing. It is up to you and your attorney to prove this negligence, which is not easy. The courts want documented proof of the abuse, which may include:
- Evidence the agent is stealing from the individuals assets;
- Evidence the agent is not managing the assets according to the individual’s wishes;
- Evidence the agent has neglected the needs of the individual.
This type of challenge can become a he-said-she-said situation, especially if the estate planning documents did not clearly state how assets should be managed or what the agent’s responsibilities included.
Why You Need Legal Assistance
It is best to have an experienced estate planning attorney by your side any time you wish to challenge a power of attorney. Because it requires a lot of expert witnesses and a thorough understanding of Florida estate laws, you need the assistance of an attorney to represent your case and help remove the agent from his or her position.
Boynton Beach Business Lawyer at the Law Offices of Peter M. Feaman can help you challenge a power of attorney that your loved one has created. Contact us today for a no obligation consultation by calling 561-734-5552 now.