Once you've executed a Power of Attorney, can you change it?
The answer is Yes.
If you change your mind about the person you chose to make decisions for you under a durable power of attorney, you can change it. In order to make changes to your Power of Attorney, however, you must have Legal Mental Capacity. If there is any question in regards to mental capacity, it is essential that a doctor's evaluation be done prior to making any changes to Estate Planning Documents such as a DPOA.
Assuming you have capacity, If you would like to replace the person on your DPOA, there is a specific legal protocol that you must follow.
Step 1: Draft a New Durable Power of Attorney with a Qualified, Experienced Estate Planning Attorney
Drafting your Power of Attorney with the representation of an attorney not only ensures that your documents will be legally valid, they will be more likely to hold up in a Court of Law. I recently handled a case in which a daughter was given Power of Attorney by her mother. They executed the document with a Document Preparer, reasoning that it was more affordable. After the mother died, her sons claimed the mother did not understand what she was signing and had made a "mistake." This would be much more difficult to do if the mother had retained an attorney to execute the documents on her behalf. While anything can be contested later, it is significantly harder to do so when a party was represented by an attorney.
Step 2: Revoke the Previous Power of Attorney
A new Durable Power of Attorney revokes any prior Power of Attorney documents. Nevertheless, you want to make sure that your new document states that any and all prior documents are being revoked. Your prior attorney-in-fact should be notified that the Durable Power of Attorney naming them has been revoked. In situations where you have named a child, for example, and that child is not aware they were named, it may not be necessary to notify them. Nevertheless, check with your attorney to ensure all proper notifications are sent out.
If any agencies or institutions have a copy of your prior Power of Attorney, a copy of the new power of attorney should be sent to them. Business, organizations, and persons not knowledgeable about a revocation cannot be held legally liable for any actions taken based on the Power of Attorney they possess.
Always consult an Estate Planning attorney for help in drafting a new power of attorney should you wish to revoke an existing one. The cost of proper estate planning is negligible when compared to the costs of making a mistake that lands your Estate in Court.
For questions about Durable Powers of Attorney, or other Estate Planning documents, please contact our East Bay Estate Planning Law Office at 925-322-1795 for a consultation.