Topic:
ESTATES LAW; ATTORNEYS; MENTAL HEALTH;
Location:
ATTORNEYS;

OLR Research Report


September 7, 2005

 

2005-R-0669

POWER OF ATTORNEY - REVOCATIVE

By: George Coppolo, Chief Attorney

You asked how a person might revoke a power of attorney? Our office is not authorized to give legal opinions and this report should not be considered one.

SUMMARY

A power of attorney (POA) is a legal document by which one person, called the principal, confers upon anther person, called his attorney-in-fact or agent the power to perform specified acts on the principal's behalf (3 Am. Jur. 2d Agency, Section 172). The written authorization itself is the power of attorney.

As long as a person is mentally competent he can revoke his power of attorney at any time (Mansfield v. Mansfield, 6 Conn. 559, (1827);3 Am Jur. 2d Agency, 40)). The revocation should be delivered to the agent and can be oral or written, although a properly written and dated revocation is probably preferable since it will eliminate or lessen the possibility of a challenge to the existence or timing of the revocation.

Whether the revocation should also be delivered to third parties depends on the circumstances. For example, if the POA was recorded on the land records, the revocation should also be recorded. And if third parties such as banks were relying on the POA, they should also be notified of the revocation, preferably in writing (3 Am. Jur. 2d Agency, 51).

Often circumstances result in the termination of a POA. For example, a POA automatically terminates when the agent dies (3 Am. Jur. 2d Agency 54). It also automatically terminates when the principal becomes incompetent unless a durable power of attorney was used. (This is explained in greater detail below.)

Once the power has been revoked the principal is free to give his POA to someone else.

TERMINATION OF POWER OF ATTORNEY AND DURABLE POWER OF ATTORNEY

Except as noted below, a power of attorney, terminates when the principal becomes incompetent (3 Am Jur 2d, Agency, 58). The loss of capacity may be the result of insanity or mental incompetence, temporary or permanent.

But a durable power of attorney permits the principal to create an agency in someone that continues in spite of the principal's later loss of capacity to contract. The only requirement is that the instrument creating the power contains language showing that the principal intends the agency to remain effective in spite of his later incompetence (3 Am Jur 2d Agency, 28). Connecticut law requires that the document contain the words “this power of attorney shall not be affected by the subsequent disability or incompetence of the principal, or words of similar import showing the principal's intent is that the authority conferred may be exercisable even though he becomes disabled or incompetent” (CGS 45a-562).

If the probate court appoints a conservator for the principal's estate, any durable power of attorney in effect immediately ceases and the “attorney in fact” must account to the conservator rather than the principal (CGS 45a-562(b)).

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