Full question:
Currently there is a durable power of attorney which was in effect 3/2007. The person who has power of attorney is seeking to utilize resources and this approach is questionable as it doesn't serve the party's overall welfare. There are pre-existing monies to be released and we would like to revoke the power of attorney from 3/2007. The party is of sound mind and has expressed wanting his sister to have power of attorney moving forward. What should be the next step?
- Category: Power of Attorney
- Date:
- State: Pennsylvania
Answer:
The person designated to be the agent assumes certain responsibilities. The agent is obligated to act in the principal's best interest. The agent must always follow the principal's directions. In order to disobey the instructions of the principal, court approval must be obtained. Agents are "fiduciaries," which means that the agent must act with the highest degree of good faith in behalf of their principals. The agent must keep his money separate from the principal's; keep detailed records concerning all transactions he engages in on the principal's behalf; not stand to profit by any transaction where the agent represents the principal's interests; and not make a gift or otherwise transfer any of the principal's money, personal property, or real estate to himself unless the power of attorney explicitly states he can do so.
Fiduciaries owe two main duties to their clients: a duty of loyalty and a duty of care. The duty of loyalty requires that fiduciaries act solely in the interest of their clients, rather than in their own interest. Thus fiduciaries must not derive any direct or indirect profit from their position, and must avoid potential conflicts of interest. The duty of care requires that fiduciaries perform their functions with a high level of competence and thoroughness, in accordance with industry standards.
In order to revoke, cancel, or end a power of attorney before it expires, the principal must sign a revocation of power of attorney, with a copy given to the agent, and give a copy of the revocation to any person who might have or will possibly deal with the agent.
Please see the follwoiing PA statute:
20 Pa.C.S.A. § 5605. Power of attorney not revoked until notice
(a) Death of principal. — The death of a principal who has executed a
written power of attorney, durable or otherwise, shall not revoke or
terminate the agency as to the agent or other person, who, without actual
knowledge of the death of the principal, acts in good faith under the
power. Any action so taken, unless otherwise invalid or unenforceable,
shall bind successors in interest of the principal.
(b) Disability or incapacity of principal. — The disability or
incapacity of a principal who has previously executed a written power of
attorney which is not a durable power shall not revoke or terminate the
agency as to the agent or other person, who, without actual knowledge of
the disability or incapacity of the principal, acts in good faith under
the power. Any action so taken, unless otherwise invalid or
unenforceable, shall bind the principal and his successors in interest.
(c) Filing a complaint in divorce. — If a principal designates
his spouse as his agent and thereafter either the principal or his spouse
files an action in divorce, the designation of the spouse as agent shall
be revoked as of the time the action was filed, unless it appears from
the power of attorney that the designation was intended to survive such
an event.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
