A Power of Attorney is a powerful legal document that allows an individual (the “Principal”) to give a third-party (the “Agent”) the authority to act for the Principal in specified or all legal or financial matters. Challenging a Power of Attorney can be a difficult process. Nonetheless, there are situations when a family member or loved one may be able to successfully invalidate a Power of Attorney and/or override acts taken by an Agent.

Was Maryland Law Followed during Creation of the Power of Attorney?

Maryland law dictates how a Power of Attorney shall be executed. A proper Power of Attorney must be:

• In writing
• Dated
• Signed by the Principal, or in express declaration of the Principal
• Witnessed and Signed by at least two (2) witnesses
• Notarized
• Voluntary, e., the Principal shall not be coerced into creating the Power of Attorney, and
• Completed by a Principal of sound mind

An attack on the validity of a Power of Attorney may be made if these requirements are not satisfied.

Was the Principal of Sound Mind?

The most commonly litigated issue regarding the validity of a Power of Attorney is whether the Principal was of sound mind at the execution of the document. An individual is of sound mind if: she understands what she is doing; she comprehends the effect of what she is doing; she appreciates the general nature and extent of her property; and she recognizes the objects of her bounty, i.e., her family.

The process of proving that the Principal was not of sound mind can be complex.  It frequently involves obtaining and reviewing medical records, talking with healthcare providers, family members and others and preserving and presenting testimony from medical professionals, relatives, experts and other witnesses.

Is the Agent Acting in the Principal’s Best Interest?

An Agent has fiduciary duties to the Principal. Put simply, Agents are tasked with acting in the best interest of the Principal.  Agents are expected to use reasonable care, show obedience to reasonable instructions, and remain loyal to the Principal.  They are not to use the Power to enrich themselves or subvert the Principal’s wishes.  Unfortunately, not all Agents perform according to this standard. An Agent who does not act in the Principal’s best interest may lose their rights under the Power of Attorney and be liable for their improper acts.

If you believe an Agent is not acting in your loved one’s their best interest, promptly speak with an attorney.  The Agent may be

• Stealing from the Principal’s assets
• Mismanaging the assets
• Making important decisions not in the Principal’s best interest and/or
• Failing to otherwise meet their fiduciary obligations.

Determining whether an Agent is acting properly may not be simple and overriding the Agent or the Power of Attorney can be complex.  Enlisting an experienced attorney if you have concerns, however, can help a loved one or interested party ensure the Principal’s best interests are met and major life decisions are fairly and properly made. The attorneys at Azrael, Franz, Schwab & Lipowitz have years of experience creating, reviewing and where appropriate challenging actions taken under a Power of Attorney and other estate planning documents.  For more information about how we can help, contact us today.