After you make a power of attorney, you can revoke it at any time, as long as you are of sound mind. But to make the revocation legally effective, you must carefully follow all the procedures set out in this section.
Only you, or someone a court appoints to act for you, can revoke your power of attorney
You can revoke your durable power of attorney as long as you are of sound mind and physically able to do so. The sound mind requirement is not difficult to satisfy. If someone challenged the revocation, a court would look only at whether or not you understood the consequences of signing the revocation. (The competency requirement is the same as that required to create a valid power of attorney in the first place; see Possible Challenges to Your Document.)
If you've prepared a power of attorney that won't be used unless you're incapacitated, years may elapse between the time you sign the durable power of attorney and when it is put to use. During that interval—or even after your attorney-in-fact starts using the document, as long as you are mentally competent—you may decide you need to revoke the durable power of attorney. Here are the most common situations in which you should revoke a power of attorney and start over.
There is no accepted way to amend a power of attorney. If you want to change or amend a durable power of attorney, the safe course is to revoke the existing document and prepare a new one. Don't go back and modify your old document with pen, typewriter or correction fluid—you could throw doubt on the authenticity of the whole thing.
EXAMPLE: Tom signed a durable power of attorney several years ago. Now he is in declining health and wants to add to the authority he gave his attorney-in-fact, Sarah, giving her the power to sell his real estate if necessary. Tom should revoke his old durable power of attorney and create a new one, granting the additional authority.
Similarly, you should revoke your durable power of attorney if you change your mind about your choice of attorney-in-fact. If you create a durable power of attorney that won't be used until later, your attorney-in-fact may not be available when the power of attorney is eventually needed. Or you may simply change your mind. If that's the case, you can revoke the durable power of attorney before it is ever used.
If you move to another state, it's best to revoke your old durable power of attorney as described below and create a new one, complying with all regulations of your new state. This is true even though your old power of attorney may be acceptable under your new state's laws.
If you don't make a new document, your attorney-in-fact may run into problems that are more practical than legal. For example, the document may need to be recorded with the local land records office in the new state. If the document does not meet certain requirements, the recorder's office in the new state may not accept it. Making a new document will ensure that things will go smoothly for your attorney-in-fact.
If you lose your signed power of attorney document, it's wise to formally revoke it, destroy any copies and create a new one. Very few people are likely to accept your attorney-in-fact's authority if they can't look at the document granting the authority. By officially revoking the lost version, you reduce chances that the old power of attorney might someday resurface and confuse matters.
If you get married after signing a durable power of attorney, you'll probably want to designate your new spouse to be your attorney-in-fact, if your spouse wasn't the person you named originally.
If you name your spouse as your attorney-in-fact and later divorce, you will probably want to revoke the power of attorney and create a new one, naming someone else as the attorney-in-fact.
In a number of states, the designation is automatically ended if you divorce the attorney-in-fact. In that case, any alternate you named would serve as attorney-in-fact. You still may want to create a new power of attorney—one that doesn't mention your former spouse and lets you name another alternate attorney-in-fact.
There are two ways to revoke your power of attorney. You can:
The first method is always preferable, because it creates proof that you really revoked the power of attorney. Some states may allow you to revoke your power of attorney simply by preparing a new one. It's still advisable, however, to prepare a separate Notice of Revocation and notify everyone who needs to know about the revocation.
The purpose of a Notice of Revocation is to notify the attorney-in-fact and others that you have revoked the durable power of attorney.
Your WillMaker durable power of attorney prints out two kinds of Notice of Revocation forms. If you didn't record your durable power of attorney in
the county land records office, choose the Notice of Revocation for an unrecorded document. If you did record the original durable power of attorney, you must also record the revocation; choose the Notice of Revocation for a recorded document.
You must sign and date the Notice of Revocation. It need not be witnessed, but witnessing may be a prudent idea—especially if you have reason to believe that someone might later raise questions regarding your mental competence to execute the revocation. Sign the Notice of Revocation in front of a notary public.
If you recorded the original durable power of attorney at your local recorder of deeds office, you must also record the revocation.
But even if the original durable power of attorney was not recorded, you can record a revocation if you fear that the former attorney-in-fact might try to act without authorization. If the revocation is part of the public records, people who check those records in dealing with the real estate later will know that the former attorney-in-fact is no longer authorized to act on your behalf.
It's not enough to sign a revocation, or even to record it, for it to take effect; there's one more crucial step. You must notify the former attorney-in-fact and all institutions and people who have dealt or might deal with the former attorney-in-fact. Each of them must receive a copy of the Notice of Revocation.
If you don't give this written notification, people or institutions who don't know the durable power of attorney has been revoked might still enter into transactions with the former attorney-in-fact. If they do this in good faith, they are legally protected. You may well be held legally liable for the acts of your attorney-in-fact, even though you have revoked his or her authority. In other words, once you create a durable power of attorney, the legal burden is on you to be sure everyone knows you have revoked it.
EXAMPLE: Before Michael undergoes a serious operation, he makes a durable power of attorney. After his convalescence, Michael revokes the power of attorney in writing. He sends a copy of the revocation to Colette, his attorney-in-fact, but neglects to send a copy to his bank. Colette, fraudulently acting as Michael's attorney-in-fact, removes money from Michael's accounts and spends it. The bank isn't responsible to Michael for his loss.
Who needs to know? When you're ready to send out revocation notices, try to think of everyone with whom the attorney-in-fact has had, or may have, dealings. These may include: