Can a power of attorney do something the principal does not want?

Depends on the type of power of attorney, the legal mental status of the principal, and whether the thing to be done is in the best interests of the principal or not.

Why do you ask?

You should only discuss this with an attorney. It is unwise to discuss this in a public forum where there is a preserved written record.

Yes, and No. The point of the power of attorney is that the person holding it will do only what the person granting it would have wanted or does want them to use it for. In general that means what they wanted while they were in control of their faculties.

There are many types of powers that can be written up to allow for very broad or very limited control.

For instance George is 18 and joining the military, he gives his mom Power of Attorney to handle his bills, bank accounts etc for him while he is overseas at war. Mom is only to use it to do what he would do if he were home. Generally mom has a good idea what her son wants done and an informal list of things she is to pay, purchase, etc. This is done with the knowledge that the power of attorney will not be used while George is home. It's usually written up that way.

James is 65 and has been diagnosed with the very first hints of cancer and suspicion of minor cognitive issues. James makes sure his will is in order, sets up a medical power of attorney, living will etc and assigns power of attorney to his adult daughter and also chooses someone to oversea the settling of his estate when he passes. He does so to make sure that his wishes and obligations are carried out when he is unable to do so. James is then diagnosed with mild cognitive decline which rapidly slides into severe cognitive decline and is no longer legally able to take care of his finances, remember his obligations etc. His daughter is supposed to use her power of attorney to do what James would have done before he became unable to think clearly. So if James always paid his electric bill on time but now says to her "don't pay that bill ever again", it is his daughters obligation to pay the bill even though James doesn't now want her to do so. See?

I realize that's rather oversimplified but the proper use of a power of attorney is basically to do what the person granting it would have wanted.

There are two types of POA. An immediate where a POA can take over at that time. Then a Springing, that only takes effect if the person can not make decisions for themselves.

I have an immediate for my disabled nephew for financial. He is not good with money, so I oversee it. My Moms was a Springing which I took over when her Dementia got worse. In hers, it was listed what I could and could not do.

If the person still is cognitive, can make their own decisions, then the POA has no authority in a Springing POA. So no, the POA cannot do something the principle does not want. If incognitant, the POA can only do what the POA stipulates they can do in the paperwork. Anything else can be questioned.

This site should be used to encourage each other— not to give inaccurate legal advice that could get someone in legal trouble.

Please see a lawyer (in your state) and do not rely on opinions here.

It’s been done many times & often they are afraid to speak up.

The answer to your question depends on several things. I’ll use my experience with my Mom to give you an answer.

The POA my brother & I have over our mother is very broad, giving us legal authority over all her business. She has dementia, will soon be going on Medicaid, & we have had to do MANY things she didn’t want us to do. She didn’t want us to get rid of the stuff in her house when she went in the nursing home, didn’t want us to sell her car or scrap her van. Can’t you just see a small room in the nursing home with 2 large totes of shoes, 2 totes of purses, 100 dolls, and how is she even going to get on Medicaid owning 2 vehicles?!?! We signed a statement that all dealings would be to the BENEFIT of our mother, NOT for our personal gain.

You need to speak to an attorney. Find out the difference between the powers granted by a POA and those of a guardianship. Many many people think a POA has more teeth than it actually does.

Time on this forum makes me more concerned about my future POA and estate planning decisions.

We all hope to be in a position where we don’t lose our faculties..., but if I do, I sure hope my POA would only act in my best interest (which hopefully would also be what I want).

It is terrifying to think otherwise.

Need change of Power of Attorney. as Son dumped me out to find place to live Feb 5,2018, lived with 7 years . Surprised me. Was sick Pottasium deffecncey and in hospital Feb to Aug 25 in rehab and Ombudsman helped get out of nursing home and get apartment. but they lied no one will help here because of bed bugs, refused by many companies now my apartment is under control June 1, 2019. none seen for 2 months. finally. I need help with laundry and getting groceries, from a store, closest thing is Dollar Store 3 blocks from here. not easy to get there and back using walker. Laundry here, but doing it is hard on my back, due to disabilities for many years with my back. live on SSI. income. ok place most older people here. need help with living.

What is the situation? I am struggling with that question myself. I am POA for a lovely lady but she was a hoarder, saved everything her entire life including holiday wrapping paper and clothing from 50+ years ago. Boxes full everywhere! She is selling her house and the realtors need it cleaned out before it’s shown. The problem is that she goes into full blown anxiety when I bring up cleaning the house. I know heirlooms from junk and would save all of those for her but she even wants to save a “fuzzy puppy” tissue box cover from the 1960s. I envision her needing to see every single thing, piece by piece, as the decision is made to keep, donate or toss; possibly even following me to the dumpster. Sometimes you have to do things that the principal does not want but when is it ok to cross that line?

When my husband and I hired a lawyer to create PoA, he said that it would take effect only when one of us is incapable of making decisions on our own. It won’t work just because the ink is dried on the dotted signature line. Check with a lawyer.

Because my parents were able to convince people that they were able to care for themselves, even though they were incompetent, I couldn't do anything until a doctor said they were incompetent. I ended up going to court and getting Legal Guardianship.
With Guardianship I have been able to care for my parents, and make sure they are safe and well cared for.
Like some of the others have said; Go see an attorney and explain your situation. You will be told what you need to do to start the ball rolling.

Depends on the terms of the Power of Attorney. Need to read the power of attorney carefully. Also, legally you always have to act in the Best interest of the principal. Just because a power of attorney grants the agent a power it doesn’t mean they have the right to act on that power.

Even with a general power of attorney with broad powers an agent can't generally (1) change a principal’s will (2).Make decisions on behalf of the principal after their death. (3) Change or transfer POA to someone else. (4) choose another agent.

Also, your state law may limit what can be done,

When in doubt (1) be conservative in interpreting the rights of the agent and (2) talk with a lawyer

My mom and I updated our POA last week because our state instituted a new one this year that requires acceptance and limited liability (win/win for everyone). However, it's *not* a Guardianship. In a broad stroke explanation our lawyer said switching over to a Guardianship can't happen until the individual becomes combative and a danger to his/her-self or others and you have to get a judge to sign over guardianship to you. Then you can make all of the decisions regardless of the principal's wishes HOWEVER - and this is very, very important - it still has to be in the best interest of the principal.

This is where having a trusted elder care lawyer is vital. My lawyer was initially a family lawyer who specialized in estate law and elder care and has helped my family through several stages of life. I have complete confidence in her ability, but more importantly, her care and concern for my family.

A PoA means that the one executing the PoA appoints a trusted person (in this case you) to act on his/her behalf and in his/her best interests. It takes effect when the person executes (signs and usually has notarized) the document and gives it to the person named as PoA. There is no requirement that the person be mentallly incompetent; sometimes they are immobile and can't get to banks, etc., sometimes their eyesight has deteriorated, etc.

A PoA does not authorize a person to contradict the wishes of your parents. A person, even one with some degree of cognitive loss, is free to make their own unwise decisions (unless they have been declared incompetent by a court). Let's say you think it's time for them to sell their home and move to AL. If you do this against their wishes you could be sued. However, if you believe something is in their best interests that they do not consent to, you would then need to go to court to have them declared incompetent. This is very tricky and a high bar to hurdle; incompetency in one matter may not mean general incompetency, and in persons with dementia periods of incompetency may come and go during times of general lucidity.

If your parents trust you to do the right thing when you advise them, this often goes a long way toward gaining their consent. Sometimes it may be good to video a discussion about the decision to be made, so you can show that they made a decision that you recommended, when of sound mind. But always, always to what is best for them, not what is convenient for you. Good luck.

The POA acts in the interest of the person who appointed him or her. That means that while the person is able to make his own decisions he can request the poa to do what he wants: ie "Do not sell the house" ie "I would like the beneficiary on this CD changed to.....". My own Financial POA states that I have the power to act in all financial transactions in the interest of my brother, and that my POA DOES NOT EXPIRE when/if my brother is unable mentally to act in his own behalf. My brother is diagnosed with probable Lewy's Dementia which means that his ability to act in his best interest may diminish and he and I were anxious to get him protected while he can act in his own behalf. IF I were to have to start to make all decisions on my own without his honest input because I felt he was not able to make any decisions I would think I should have, just for safety sake, a letter from his doctor as regards his dementia, and inability to make decision.

It depends on the state. And it depends on many other things too. For instance, if you LO goes into NH and is on Medicaid, LO may not want home sold and assets liquidated, but POA will have to take care of that for them as it is a Medicaid requirement. In Indiana, the POA is allowed to change the beneficiaries on the principals life insurance policy, but only to a degree...that is, let us say three children are each inheriting 33% of life insurance proceeds upon death. POA can change that to one getting 1%, another getting 1%, and the final child getting 98%. I know this is difficult to believe. But the POA can pretty much, with a lawyers help that knows loopholes, do anything they want, regardless of what Principal wants. It is not supposed to work that way, but in my case, that is what happened. Once Medicaid is involved, everything must be done, even during the application period before being approved, according to their requirements, but as an example of loopholes...in our case, the lawyer found a way to say that a house and a car (both owned outright by my mom) were worth less than 1200.00, so the POA could give both to my brother and avoid the Medicaid rules of giftgiving and lookback. So there is a rule that my mom could make a 1200.00 gift to her kids. But my sister and I did not get any 1200.00 gifts. Because the POA hates us. So you see...a POA, with enough support, tricking, and legal behind them can get away with a lot...especially, in our case, in the name of "what is best for LO, according to the POA opinion". Moms POA does not even ask Mom her opinion about anything. He is drunk with his tiny power over her tiny estate, and complains endlessly about the hours and hours he has spent working on this stuff, contradicts the lawyer, doesnt have emal or a smart phone so instead of getting a copy of something via email, he has to drive hours and hours to pick up a piece of paper...and it never ends. This is in Indiana...your state may be different, each state has their own rules, POA documents, and Medicaid requirements. But I wish you lcuk, I wish I could have known any of this was coming so I was better prepared to help my mother defend herself and make better decisions for her future. Now that this POA is signed...even though she is not incapacitated, she is to intimidated by her family, she doesnt have the strength to even ask or question anything, they simply threaten to "put her in the mental hospital" if she appears to ask about laundry, or maxipads, as they take it to mean she is "ungrateful". The whole things sucks, and all I have learned from this entire ordeal is to have my finances, will, life insurance and retirement accounts safe from my family (and Medicaid by paying my own way for long term care), with the backup plan of suicide, and making sure my family cannot find me, before I would let anyone put me in a NH or bully me, in my elder years.

Like what?

ONLY IF IT IS IN THEIR BEST INTEREST

If principal no longer wants the current POA, it's time to get another one. If an atty prepared it, have principal call him and request a new one...then go sign it.

Elder law attorney.

If you do not know if the person is of sound mind that would be step one. An assessment to find that out. My own POA was drawn up by my brother and I with his being of sound mind but has been diagnosed with a brain tumor and a possible Lewy's Dementia, so that the mind may be going at some point. The POA states that when/if the grantor of the POA is no longer of sound mind, the POA still does have the POA to act in his stead.

YES - because I haven't heard of anyone asking to go to a nursing home  more often it is the opposite however a POA can't change a will, or other legal paperwork even the terms of the POA - check with a lawyer to sure of your question specifically

Uh, Jada? What sort of legal documents?

Either your sister kind of missed the point of her power of attorney, which is that it enabled her to sign documents as your mother's proxy, so there was no need for her to get your mother to sign;

Or these documents were beyond the scope of your sister's authority, in which case she had no business meddling with them.

Do you know what they were?

I just took over POA for my brother as well as Trustee of his trust. My understanding is that I am HIS fiduciary and I am acting on his behalf and on his instructions. If he says "Do not sell the trailer" then I must not sell the trailer. If he instructs someone I don't care for be put on a CD as beneficiary then that is what I am to do. This holds for as long as my brother is of sound mind and he IS of sound mind. If he should be adjudged incapable of making decisions then I am to make decisions in his interest, and with his best outcome foremost in my own mind. If there is any other kind of POA I am not aware of it. This is an excellent question for the Lawyer who drew up the POA document, or another elder care attorney. In general, when dealing with removing a person as power of attorney and appointing another, even with appointing the first POA, an attorney is VERY careful to assess the mentation of the person requesting a change. An attorney could lose license for allowing a new assignment of POA to another person under the direction of someone demented. You say you have visited several attorneys about this matter? As you have not seen the principle party to the POA, who assigned, then withdrew, then assigned someone ELSE (if I understand correctly) for two years, I would say that this is pretty much the end of it all, and I would move on with my own life.

Lawyers should not be able to assess a person’s capability especially when meeting them once. All trust or will amendments & POA papers should be videotaped with no one else in the room but lawyer & principal. There is too much manipulation & undue influence going on & it’s outright theft!

Is the principal mentally competent according to the law? If so, the POA would have to follow their directions, acting as their proxy (or if they could not in conscience do the requested thing, then resign as POA).