Can An Incapacitated Person Revoke a
Durable Power of Attorney?

A durable power of attorney is an important document. It authorizes another person to handle financial affairs on your behalf.

If you don’t have a durable power of attorney and become incapacitated, a guardianship may be necessary. Guardianships are expensive and cumbersome and can be avoided with a durable power of attorney.

Generally, you can amend your durable power of attorney by signing a new durable power of attorney or by signing an amendment. You also have the right to revoke or terminate the durable power of attorney at any time as long as you are competent.

If you become incapacitated, your durable power of attorney will endure until your incapacity is lifted. It will not be possible for you to amend or revoke your power of attorney during your incapacity.

Comments

  1. Weldon Copeland says:

    A durable power of attorney unquestionably remains valid after the original maker of the power of attorney becomes incapacitated.

    But there is some question about whether an incapacitated person can revoke the durable power of attorney even after they become incapacitated. Do you have a case citation standing for the proposition that the maker of a durable power of attorney cannot revoke the power of attorney once they become incapacitated?

    Note that a medical power of attorney can be revoked by an incompetent person ever after the incompetent person becomes incompetent. TX HEALTH & SAFETY § 166.155.

    • I have communicated with Professor Gerry Beyer about this issue and while it is not spelled out in the statute, it is his opinion that the principal must have capacity to revoke. Otherwise, no one could rely on a durable power of attorney once the principal is incompetent.

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