Is it legal if I’m POA for a principal who was declared incompetent a year after my appointment and shortly thereafter went to a nursing home that had the principal sign papers revoking my POA?

Is this even legal? I was appointed 2 years ago and then last year the principal was admitted into the nursing home. Just the other day they had the principal signed the revocation of my appointment.

Asked on July 20, 2015 under Estate Planning, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

The revocation of your POA would not be legal if the principal was legally incompetent (as you indicate he was) at the time of the purported revocation; only a competent individual may create, amend, or revoke a power of attorney. If the revocation was signed after the adjudication or determiantion of incompetency, it would not be valid; if the nursing home insists that the revocation is valid, you can bring a legal action seeking a "declaratory judgment" (court declaration or determination) that the revocation failed and the POA is still in effect. The primary evidence in the case would be the dated declaration of incompetency and the dated alleged revocation.


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