The Elrod Firm

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How do you make a power of attorney invalid?

Justin, last month my mom’s doctor wrote a letter saying she is incompetent, but my sister had her sign a power of attorney last week. My sister is not looking out for our mom, and I told her that power of attorney isn’t any good and she needs to stop using it because mom can’t sign legal documents anymore. My sister disagrees—what should I do? – Mary

There’s not a simple answer to this question. A statement from a doctor of incapacity does not automatically void the power of attorney that your mom signed. It is possible that your mom had a moment of lucidity and at the time she signed the power of attorney she understood what she was doing. If she understood at the moment she signed the document, it would be valid. The law presumes you have capacity until a judge says otherwise.

That being said, the document is also not necessarily valid. If your mom didn’t understand what she was doing, you might be able to have those documents set aside. But to accomplish that you would need to take your sister to court, argue that your mother did not have capacity, and ask the judge to find the documents invalid. You also need to consider, however, that at the end of the case, even if you win, you still don’t have authority to act for your mom.

Another option that may better meet your needs would be to pursue guardianship over your mom. You could contact the physician who previously said she was incompetent for evidence of the need for guardianship. If the judge then finds that your mom is incapacitated she would no longer be able to execute new documents. Also, the judge in the judge in the guardianship hearing can set aside the power of attorney documents.

Are you in a similar situation?

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