How does someone relinquish Power of Attorney if the person they are responsible for is declared incompetent?

About 15 years ago my stepfather signed POA to my sister and brother-in-law. My sister has since passed away and her husband does not want the responsibility. My stepfather suffered a stroke last week and is not competent. Can my brother in law relinquish the POA to another family member?

Asked on July 20, 2015 under Estate Planning, Pennsylvania

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

No, he cannot give the POA to another person--only the principal (the person creating the POA; your stepfather) could do that, and only if he were competent. But your brother-in-law does not have to act as a POA; he can refuse to use his power. (Nobody can be made to act as an attorney-in-fact, or exercise power under a POA, against their will. If there is an alternative or back-up attorney-in-fact or agent designative in the POA itself, he can in that case, let it pass to the alternative/back-up person (he should send him or her something in writing indicating that he is refusing to act as the attorney-in-fact or agent).

If there is no back-up person designated to take over and your brother-in-law refuses to act as the agent, then someone will need to be appointed guardian over your stepfather. Speak with an elder law attorney about how this would be done.


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