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


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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