Can You Change Power of Attorney Without Consent?

Planning for when you can’t manage your affairs?

A power of attorney is vital for estate planning.

But if a loved one can’t create it in time, what do you do? Can you get it without their consent? Unfortunately, no.

The person making it, the principal, must be mentally capable.

Can You Change Power of Attorney Without Consent?

No, similar to obtaining power of attorney without consent, changing power of attorney is not possible without the principal’s consent.

This article will cover the basics of what is a power of attorney and whether you can get or change power of attorney without their consent.

An Image of a Power of Attorney Document
Can You Change a Power of Attorney Without Consent? Photo Source (Freepik)

What is a Power of Attorney?

What is a power of attorney (POA)?

It’s a legal document where a person (the “principal”) gives someone else (the “agent” or “attorney-in-fact“) the authority to act on their behalf.

POAs can grant broad or limited powers, depending on the type and purpose.

The principal can create, revoke, or modify a POA as long as they are of sound mind.

They can still make their own decisions if legally competent.

Creating a POA empowers the agent to make legal decisions, but it doesn’t necessarily stop the principal from making their own choices (as long as they’re of sound mind).

Power of attorney comes in different types, with two crucial distinctions: general versus limited (or specific) powers of attorney, and durable versus non-durable powers of attorney.

General vs Specific Power of Attorney

Firstly, there’s a difference in the extent of legal authority granted by a power of attorney.

  • A general power of attorney provides broad authority, allowing the agent to make financial and medical decisions for the principal.
  • On the other hand, a specific POA offers more limited power, authorizing the agent for particular contexts like financial or medical matters.

For example, in a financial POA, the agent can handle financial tasks like bill payments and managing bank accounts.

In a medical POA, the agent can make medical decisions for the principal.

Specific powers of attorney can be very narrow, such as authorizing the agent for tasks like filing taxes or executing a single financial transaction on behalf of the principal.

Durable vs Non-Durable Power of Attorney

The other key difference in powers of attorney lies in their validity over time.

How long does a POA last?

They typically expire in situations like the principal’s death.

However, a crucial distinction is whether a power of attorney remains valid if the principal becomes mentally incapacitated.

  • A durable power of attorney stays valid even if the principal is incapacitated, while a non-durable POA does not. (A springing POA, a type of durable POA, takes effect upon a specific event, like the principal’s incapacitation).

Some states assume any POA is durable by default, but it’s essential to check your state laws, as this distinction matters.

This includes scenarios where regular, durable, and springing powers of attorney remain valid if the principal becomes mentally incapacitated.

How to Get Power of Attorney

Creating a power of attorney is usually simple, though the process and document requirements vary by state.

For instance, some states mandate notarization or witnesses to verify the principal’s mental competency.

Online template forms are available, and you may not need a lawyer, though consulting an estate planning attorney is advisable for clarity on the agent’s authority.

Once executed, POA documents usually don’t need court filing, but keeping the original safe is wise.

Unlike other legal processes, creating a power of attorney is generally straightforward and doesn’t involve going to court.

An Image Depicting an Attorney in Fact
How to Get a Power of Attorney. Photo Source (Freepik)

Can Someone Get Power of Attorney Without Consent?

No, obtaining power of attorney without consent is not possible.

The principal, if mentally sound, can create, modify, or revoke a power of attorney.

However, if the principal is not legally competent, these actions cannot be taken, and no one can do them on their behalf.

POAs must be voluntary and created freely by the principal.

If a loved one lacks mental capacity and can’t create a power of attorney, you’ll need to seek a court guardianship or conservatorship.

These processes allow someone (guardian or conservator) to legally act on another’s behalf.

Unlike voluntary POAs, guardianships and conservatorships are not optional and require court approval.

To gain legal responsibility, you must petition the court for appointment as guardian or conservator, which can be a slow and more expensive process than a power of attorney.

The judge may appoint someone else, typically a family member to make the request, based on their ability to fulfill duties.

Unlike a POA, where the principal chooses their agent, the judge decides in guardianship or conservatorship.

Can Power of Attorney be Changed Without Consent?

Can You Change Power of Attorney Without Consent?

No, similar to obtaining power of attorney without consent, changing power of attorney is not possible without the principal’s consent.

It’s essential to note that a mentally competent principal can always override or revoke a power of attorney document.

They also have the authority to make changes, such as altering the named agent in the legal document.

Whether creating, revoking, or changing a power of attorney, the principal must do so willingly and of their own accord while they are mentally sound.

No one else, including the agent, can modify a power of attorney document without the principal’s consent.

The Bottom Line

No, you can’t get power of attorney without consent; it has to be made willingly by a mentally competent person.

If someone loses the capacity to create one, you’d have to ask a court for guardianship or conservatorship to manage their affairs.

Planning ahead with the power of attorney documents is better and less complicated than court processes.

Consult with an estate planning or elder law attorney for guidance on future planning.