Q. My mother named my brother as her agent under her power of attorney to handle her financial affairs, but he seems to be abusing his authority and my mother wants to revoke it. Can she do so, and how would she go about it?
A. The simple answer is, yes, she can revoke her power of attorney, providing that she is mentally competent to do so. While the revocation can be handled either verbally, or in writing, the most effective way is as follows: she would prepare a formal Revocation of Power of Attorney, in writing, and arrange for its hand-delivery to your brother and to any other third parties who may have relied upon it, such as banks, brokerage houses, and the like.
The written revocation should make specific reference to the Power of Attorney (“POA”) in issue, by referring to your mother as the principal, the date it was signed and its designation of agent. It might also help if she can attach a photocopy of the original POA to her written Revocation, and reference that attachment in the text of the Revocation. Here is an example:
“I hereby revoke the Power of Attorney I signed, as Principal, on January 3, 2015, naming my son, John Brown, as my agent. A true copy of said, now revoked, Power of Attorney is attached.”
If the Power of Attorney (“POA”) has been used for any real property transactions, the original most likely will have been recorded and, in that event, the revocation should likewise be recorded in each county wherein the original was recorded. If it is to be recorded, the Revocation must be notarized and should reference the Book, Page, Image and/or Instrument Number of the previously recorded POA.
Two cautions, however: (1) The Revocation is not effective until your brother receives actual notice of that Revocation. So I would urge that it be hand-delivered by messenger, who then signs an affidavit as to the date and time of personal delivery. (2) Third parties, such as banks, may continue to rely upon the validity of the POA until they receive notice of its Revocation, and they would usually be shielded from responsibility for continuing to honor it in good faith. Therefore, it is important to immediately also deliver a copy of your mother’s revocation to her banks and other financial institutions.
Your mother should also visit her banks to determine whether she has signed their “short form” Limited POA’s authorizing access to her accounts and/or to her safety deposit boxes. If so, she may wish to revoke them, as well, or revise them to name other persons whom she now trusts as her new agent(s).
A revocation can also be effective if your mother were to sign a new Power of Attorney which expressly recites that all prior general POA’s are revoked. Again, if she chooses this manner of revocation, this new POA should be personally delivered to your brother and to her financial institutions, with an appropriate cover letter calling attention to the “revocation” provision of the new POA.
Note: The Revocation provision in a new POA might exclude from revocation powers of attorney for health care, or any other limited powers that the principal does not intend to revoke.
To make sure all of this is handled properly, it might be wise for your mother to seek legal consultation and arrange for her attorney to prepare the appropriate documentation and handle its delivery in a timely manner to the proper persons.
References: California Probate Code §’s 4151 — 4153