Can you go from durable to irrevocable power of attorney?

Fay asked...

Can a durable power of attorney be changed by my mother and made to irrevocable power of attorney? We are worried that someone who does not have her best interests at heart will talk her into changing it in the future.


Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Irrevocable powers of attorney -- those giving a person authority to deal with another's property -- are rare animals. Courts generally require that the person appointed to act must have an interest in some underlying property, so that if the power were revoked he or she "would be deprived of a substantial right." In real life, that bit of legal gobbledegook means that such documents are usually confined to stock transfers and such in which those involved are related by blood or business.

But fear not too much: The very purpose of a power of attorney is to ensure that the best interests of the person for whom they operate are served. And probate courts are quick to respond to complaints that the person appointed to act is being negligent or abusive. In truth, a person who started out as a stellar choice to serve as an agent in a power of attorney may, by temperament or turn of events, become ill-suited to the task.

So while there's no way to make a power of attorney bulletproof, there is a built-in legal failsafe of having a court inspect or monitor the reality of the situation and change it if necessary.