Granting someone power of attorney is meant to provide peace of mind, ensuring important decisions are handled by a trusted person when needed. But what happens when concerns arise? Maybe a family member is worried that decisions aren’t being made in the best interest of their loved one, or perhaps the person who granted power of attorney has had a change of heart or can no longer make informed choices.

These situations can be complicated, leaving people unsure of their rights and what steps to take next. Whether you’re navigating a family dispute, questioning the actions of an appointed agent, or simply trying to understand the legal safeguards in place, knowing who can override a power of attorney is essential. Let’s explore the options and legal pathways available when a power of attorney needs to be challenged.

Who Can Override a Power of Attorney and How?

A power of attorney (POA) is a legal document that grants a trusted individual the authority to make decisions on one’s behalf. It can be invaluable in situations such as when you’re unavailable or unable to make decisions due to physical or mental incapacity.

It is often seen as a tool for the elderly or those facing serious illness. Still, it can also be useful as a legal document in many everyday situations where someone needs another person to handle financial or legal matters on their behalf such as handling real estate transactions when they are out of town, managing finances for aging parents who need assistance with banking and bills, authorizing a trusted person to make business decisions while they are travelling, or allowing a family member to file taxes and deal with legal paperwork on the principal’s behalf.

Since a power of attorney has a fiduciary duty to act in good faith, any violation of this responsibility may require legal intervention to revoke the power of attorney, name an alternate agent, or transfer the agent’s power to a new power of attorney. However, the question begs, who can override a power of attorney document?

If the principal (the person who created the first POA document) is of sound mind, they have the right to revoke the power of attorney at any time. This involves drafting a formal revocation document, notifying the agent and relevant institutions, and ensuring that financial institutions are informed of the change.

However, it becomes more challenging if the principal no longer has the mental capacity to make this decision. In this case, family members or other interested parties can file a court application to override the existing power of attorney if there are concerns over the agent’s behaviour.

The individuals who may seek to override an agent’s authority include spouses, adult children, siblings, or other close relatives, as well as any close friends, caregivers, or anyone with a legitimate interest in the well-being of the adult who may notice misuse of authority. In cases where financial abuse or neglect is suspected, the Office of the Public Guardian and Trustee can investigate. It may intervene by applying to the court to remove the attorney and appoint a trustee, to take measures to protect the principal’s interests. If the court determines that the power of attorney should be revoked, it may appoint an alternate agent to take over.

Can a Spouse Override Power of Attorney?

No, a spouse cannot automatically override a power of attorney in Alberta. Once an individual grants a power of attorney to someone (whether it’s their spouse or another person), that attorney has legal authority over financial and legal matters as outlined in the legal document. The spouse does not have automatic rights to change or revoke the power of attorney unless certain legal steps are taken.

Grounds to Have a Power of Authority Revoked

There are many scenarios where loved ones may advocate to revoke power of attorney if the principal is not deemed mentally competent or of sound mind to revoke the power of their own volition. Common reasons for challenging or revoking a power of attorney through the courts include the following.

      
• Financial Mismanagement or Abuse: Misusing funds, making unauthorized transactions, or otherwise mishandling the principal’s assets.
• Neglect of Responsibilities: If an agent refuses or fails to fulfill their duties, such as paying bills, managing property, or making necessary financial arrangements.
• Conflict of Interest or Self-Dealing: Making decisions that benefit themselves rather than the principal (e.g., transferring assets to their own name or making questionable investments).
• Loss of Mental Capacity Without Safeguards: If the power of attorney was not designated as an enduring power of attorney (meaning it does not remain valid after the principal loses mental capacity), the document may need to be overridden or replaced with a court-appointed decision-maker, such as a guardian or trustee.
• Undue Influence or Coercion: If there is evidence that the principal was pressured, manipulated, or misled into granting power of attorney, the courts may intervene to nullify the document and appoint a more suitable representative.
• Multiple Disputes Among Family Members: If conflicts arise over finances or if multiple parties claim to have the principal’s wishes in mind, the court may step in to review the power of attorney and possibly appoint a neutral third party.
    

In these situations, concerned relatives or interested parties can apply to the court, providing evidence of misconduct, negligence, or other grounds for revocation.

How to Override a Power of Attorney in Alberta

When it comes to overriding or revoking an agent’s power of attorney, the first step is to examine the power of attorney document to understand its terms. In Alberta, a power of attorney can be immediate (effective as soon as it is signed) or enduring (continues to be valid even if the adult loses mental capacity). Families should check who was appointed as the attorney, whether it is a general or enduring power of attorney, and any specific powers granted to the attorney.

If the adult who created the power of attorney is no longer mentally capable of making financial decisions, legal intervention may be necessary. In Alberta, medical incapacity may need to be proven by taking a capacity assessment. This assessment is conducted by a qualified healthcare professional or designated capacity assessor under the Adult Guardianship and Trusteeship Act (AGTA).

If the assessment determines that the adult lacks capacity, the court may need to intervene to revoke or replace the attorney. At this time, they may also make provisions around medical decisions and personal directives.

To formally challenge a power of attorney, the concerned party must file an application with the Alberta Court of King’s Bench. While there isn’t a specific standardized form exclusively for revoking a power of attorney due to an attorney’s misconduct, the process generally involves an originating application, which is used to commence legal proceedings. It outlines the orders you’re seeking and the basis for those orders.​ A sworn statement detailing the facts of the case, including evidence of the attorney’s misconduct or reasons for the revocation should also be included.

At the hearing, the court will review the evidence and determine whether the agent’s authority should be revoked. If the judge finds that the attorney is misusing their authority or is no longer suitable, they may cancel the power of attorney entirely, appoint a new attorney or trustee, or assign a court-appointed trustee or legal guardian if no suitable family member is available.

Navigating the legal process to revoke a POA can be complex. Therefore, seeking legal advice is crucial to ensure that all procedures are correctly followed and that the interests of the principal are protected.​

Protecting You and Your Loved One’s Wishes

Managing legal affairs for a family member who can no longer do so themselves can be a complex and emotional task. If you are in a position where you wish to take legal action to revoke a power of attorney, begin to gather evidence and get in touch with our law firm today.

To avoid these things happening to you, plan ahead with an enduring power of attorney, and personal directive to ensure someone is there to make financial and medical decisions on your behalf, as well as reach out to our estate planning attorney so your wishes are respected even after you are gone.

At DLegal Law Office, we offer comprehensive estate planning legal services. Our team is committed to ensuring your legal documents are precise, enforceable, and tailored to your unique needs. Contact us today to secure your future.

The content of this article is intended to provide a general guide to the subject matter and should not be considered legal or other professional advice. To get detailed information regarding your specific circumstances, please discuss your situation with a lawyer or other professional. Refer to our Terms of Use for more details.