Does Power of Attorney Override the Wishes of a Spouse?

What is a power of attorney?

A power of attorney is a legal document that grants another person or entity decision-making power over some or all of your matters, just as if you were making those decisions yourself. When you create a power of attorney, you're essentially saying, "I trust this person to act in my best interests and make decisions I would make if I were able to do so."

The person who creates and signs the power of attorney is called the "principal," while the person granted authority to act is known as the "agent" or "attorney-in-fact." This relationship creates a legal framework that allows your chosen representative to handle everything from paying bills and managing investments to making medical decisions, depending on the scope of authority you grant.

Understanding this fundamental concept is crucial because it highlights both the power and responsibility involved. Unlike informal arrangements where family members might help with tasks, a power of attorney creates a legally binding authority that financial institutions, healthcare providers, and government agencies must recognize and honor.

If your spouse has given someone else power of attorney over certain matters, you may not have the final say.

When does a power of attorney override the wishes of a spouse?

In general, a power of attorney supersedes the wishes of a spouse when the agent is acting within the scope of authority granted in the document. This principle can surprise many married couples who assume that marriage automatically grants spouses ultimate authority over each other's affairs, but the legal reality is more complex.

"Often, a power of attorney is given to another family member, business partner, or another trusted adviser with specific expertise in a given discipline, like an attorney, CPA, or business manager," explains Scott E. Rahn, founder and co-managing partner of Los Angeles law firm RMO. A non-spouse may be better able to manage specific property, business, or other matters for the benefit of the principal or the principal's family, including the spouse. The agent is usually also the executor or trustee of the principal's will and trust.

A spouse's input may be valuable in understanding the principal's likely wishes, but the legal authority to make decisions rests with the agent. However, this authority is not unlimited. The agent must always act within the scope of powers granted in the document and must fulfill their fiduciary duty to act in the principal's best interests. If a spouse believes an agent is exceeding their authority or violating their fiduciary duties, they may have legal recourse through the courts.

What should you consider before choosing an agent that isn’t your spouse?

Rahn advises thinking about a number of factors before answering that question. Does the person:

• Share my values?
• Have the experience to handle my business, financial, legal, and personal affairs?
• Have the emotional maturity needed to handle the duties they will need to undertake as my agent?
• Have the time needed to handle my affairs and their own affairs?
• Have enough financial security that they will not take advantage of the opportunity?
• Have enough resourcefulness that they will be able to manage unfamiliar situations?
• Have the ability to navigate my family's personalities and dynamics?

The last question is particularly relevant when nominating one of several children, a stepparent to children, or a non-family member. "Far too many people fail to answer many, all too often any, of these questions and instead simply [select] their spouse, eldest child, [or] all of their children," says Rahn. And this, he adds, "will all but ensure disastrous results."

Before granting anyone a power of attorney, carefully consider the scope and consequences. Review your plan with a knowledgeable attorney who can help you safeguard your rights and ensure adherence to your wishes.

Power of attorney and spousal authority FAQs

Can a power of attorney be challenged by a spouse?

Yes, power of attorney documents can be challenged in court if there are concerns about the principal's mental capacity when the document was signed, evidence of fraud or undue influence, or if the agent is exceeding their authority or violating their fiduciary duties. However, properly executed documents with competent principals are generally difficult to challenge successfully.

Who can override a power of attorney?

The principal can revoke their power of attorney at any time while they remain mentally competent. Courts can also override or limit a power of attorney if they find evidence of abuse, fraud, or that the agent is not acting in the principal's best interests. In some cases, other family members may petition the court if they believe the agent is acting improperly.

Does a power of attorney end at death?

Yes, all powers of attorney automatically terminate when the principal dies. After death, the authority to handle the deceased person's affairs transfers to the executor named in their will or an administrator appointed by the court. Agents cannot use power of attorney documents to make decisions about the estate after the principal's death.

Can I have more than one agent?

Yes, you can name multiple agents to act either jointly (requiring agreement for all decisions) or separately (allowing each to act independently). You can also name alternate or successor agents who can step in if your primary agent becomes unable to serve. Consider the practical implications of multiple agents and whether joint decision-making might create delays in urgent situations.

What happens if I become incapacitated without a power of attorney?

Without a power of attorney, your spouse or family may need to petition the court for guardianship or conservatorship to gain authority to make decisions on your behalf. This process can be expensive, time-consuming, and may result in the appointment of someone you wouldn't have chosen. The court will also require ongoing supervision and reporting, adding complexity and cost to managing your affairs.

Creating a power of attorney is one of the most important steps you can take to protect yourself and your loved ones. LegalZoom's experienced attorneys can help you navigate state-specific requirements and create documents tailored to your unique situation, ensuring your interests are protected and your wishes are clearly documented.

Gwen Moran contributed to this article.