When Authority Goes Wrong: Challenging Power of Attorney Explained

When to Challenge a Power of Attorney: Recognizing the Warning Signs

Challenging power of attorney may become necessary when you suspect an agent is abusing their authority or when the document itself wasn’t properly executed. If you’re concerned about potential power of attorney abuse, here’s what you need to know:

Quick Guide to Challenging a Power of Attorney:
1. Who can challenge: Principal, interested parties (family members, heirs, beneficiaries), court-appointed conservators
2. Common grounds for challenge:
– Lack of capacity when signed
– Undue influence or coercion
– Fraud or forgery
– Agent misconduct or breach of fiduciary duty
– Improper document execution
3. First steps to take:
– Speak to the principal (if capable)
– Request financial records from the agent
– Consult with a probate attorney
– File a petition with the probate court

A power of attorney is one of the most powerful legal documents a person can sign, giving an agent (also called an attorney-in-fact) authority to make decisions about finances, property, or healthcare. But what happens when this authority is misused?

“Financial exploitation by someone with power of attorney is one of the most common forms of elder abuse,” according to the National Center on Elder Abuse, with studies showing that 5-10% of older adults experience some form of financial abuse. Even more concerning, only 1 in 44 cases are ever reported.

When you suspect something is wrong with how a power of attorney is being used, you don’t have to stand by helplessly. Texas law provides clear pathways to challenge a power of attorney when necessary to protect a vulnerable loved one.

Whether you’re seeing suspicious bank withdrawals, noticing the isolation of your loved one, or questioning whether they were mentally capable when they signed the document, understanding how to properly challenge a power of attorney is critical to protecting their interests.

Power of Attorney 101: Types, Roles, Limits

Before we dive into the process of challenging power of attorney, let’s take a moment to understand what a power of attorney actually is and how it works in Texas.

Think of a power of attorney (POA) as a legal safety net – it’s a document that allows you (the principal) to choose someone you trust (the agent) to handle your affairs if you can’t do it yourself. Whether it’s paying your bills, managing your healthcare, or selling your property, a POA ensures someone has your back when you need it most.

Types of POA at a Glance

Texas recognizes several types of powers of attorney, each designed for different situations:

For a POA to be valid in Texas, it needs to be properly executed. This isn’t just paperwork – it’s your protection. Financial POAs must be signed by you and notarized, while medical POAs require two adult witnesses. The durable power of attorney is particularly important because it remains in effect even if you become incapacitated, but it requires specific language under Texas law to be valid.

Want to know more about whether you need a POA? Check out our detailed guide: Do I Need a Power of Attorney?

What an Agent Can—and Cannot—Do

Having power of attorney is a bit like having a VIP pass – it grants significant authority, but there are still areas that are off-limits.

Your agent can manage your bank accounts, pay your bills, handle your real estate, make healthcare decisions, and apply for government benefits on your behalf. However, they cannot change your will, make decisions after your death, or transfer their authority to someone else (unless you’ve specifically allowed it).

Most importantly, your agent has a fiduciary duty to you. As Keith Morris often tells clients, “A power of attorney is not a license to steal. It’s a serious responsibility that requires the highest level of integrity and care.”

This fiduciary duty means your agent must act in good faith, avoid conflicts of interest, keep detailed records of all transactions, and always put your best interests first. Any self-dealing (using your assets for their own benefit) is strictly prohibited, and proper record-keeping isn’t just recommended—it’s required.

Who Can Override a POA?

Contrary to what many believe, family members can’t simply override a power of attorney because they disagree with the agent’s decisions. In fact, only three entities can legally step in:

1. You (the Principal): As long as you remain mentally competent, you can revoke a POA anytime by creating a formal revocation document.

2. The Court: A probate court can invalidate a POA if there’s evidence of fraud, undue influence, lack of capacity, or agent misconduct.

3. A Court-Appointed Conservator/Guardian: If a court appoints a conservator or guardian for you, this typically supersedes any existing POA.

It’s worth noting that even a spouse cannot automatically override a valid POA. This sometimes comes as a surprise to families dealing with these issues for the first time.

Having the right POA in place is one of the most important steps you can take to protect yourself and your loved ones. It ensures that someone you trust will be there to make decisions when you can’t, while providing clear guidelines about what they can and cannot do on your behalf.

Warning Signs & Legal Grounds to Contest

Challenging power of attorney isn’t something to take lightly, but when you spot clear signs of misuse or suspect the document wasn’t properly executed, taking action becomes necessary. Recognizing these warning signs early can be the difference between protecting your loved one’s assets and watching them disappear.

When is Challenging Power of Attorney Necessary?

You might lie awake at night wondering if you’re overreacting or if something truly isn’t right with how your loved one’s affairs are being handled. Trust your instincts—especially when you notice these red flags:

Unusual financial activity that doesn’t make sense for your loved one, like large withdrawals or strange transfers that don’t align with their normal spending or needs. As one client told us, “Mom never spent more than $100 without thinking it over for a week, so seeing $5,000 withdrawals every month just didn’t add up.”

Sudden changes to wills, trusts, or beneficiaries that benefit the agent are particularly concerning. These changes often appear shortly after someone gains power of attorney—not a coincidence in many cases.

When your loved one becomes increasingly isolated, with the agent controlling who visits or speaks to them, alarm bells should ring. This isolation tactic is a classic way to hide financial abuse.

Bills going unpaid despite adequate funds, or seeing your loved one’s living conditions deteriorate while their bank accounts are being drained, demands immediate attention.

The timing of the POA creation matters too. Documents signed during hospitalization, serious illness, or just before significant cognitive decline deserve extra scrutiny.

The numbers are sobering: MetLife research reveals that victims of elder financial abuse, including POA abuse, lose an estimated $2.9 billion annually in the United States. Behind each dollar is a vulnerable person who trusted someone to act in their best interest.

Signs of Financial Exploitation

Financial exploitation leaves tracks if you know what to look for. The American Bar Association reports that breach of fiduciary duty appears in 60% of POA litigation cases—making it the most common form of abuse.

Unexplained withdrawals or transfers often start small before escalating. One family we worked with only noticed something was wrong when their father’s account was suddenly overdrawn, despite having over $100,000 just months earlier.

Dramatic shifts in financial management are telling, especially when the new investments are high-risk or completely out of character for your loved one’s usual conservative approach.

Essential bills going unpaid while the agent claims “there’s no money” should raise immediate concerns—especially if you’ve seen evidence of adequate funds in the past.

Family heirlooms or valuables disappearing from your loved one’s home without explanation often indicates that the agent is helping themselves to more than just the bank accounts.

Signatures that just don’t look right on checks or documents can be evidence of forgery—particularly if they appear wobbly, inconsistent, or notably different from your loved one’s normal handwriting.

Isolation tactics are particularly heartbreaking. As Stacy Kelly, one of our attorneys, often points out: “Financial exploitation thrives in secrecy. When family members are kept at arm’s length, that’s when the worst abuse typically occurs.”

Other Common Grounds

Beyond outright financial exploitation, several other valid reasons exist for challenging power of attorney:

Lack of capacity at the time of signing is a fundamental issue. In Texas, your loved one must have understood what they were signing and its consequences. We recently helped a family prove their father lacked capacity when he signed a POA during early-stage dementia—something his medical records clearly documented.

Undue influence occurs more often than you might think, especially when someone vulnerable is pressured by a caregiver, family member, or “new friend” who suddenly becomes exceptionally helpful. Courts look closely at the relationship dynamics and whether the principal was isolated or dependent on the influencer.

Fraud or trickery happens when someone is deceived about what they’re signing. “I’ve had clients whose parents thought they were signing healthcare directives, only to find later they’d signed away control of their entire estate,” Keith Morris often shares with new clients.

Technical errors in the document itself can invalidate a POA. Missing notarization, improper witnesses, or incorrect execution according to Texas law can all provide grounds for challenge.

When the agent becomes unable to fulfill their duties—whether through their own incapacity, criminal activity, or demonstrably poor judgment—the court may remove them and appoint someone more suitable.

Expired or terminated POAs that agents continue to use improperly are surprisingly common. Some powers of attorney have specific end dates or conditions that, once met, terminate the agent’s authority.

If you’re seeing these warning signs, you’re not alone. Many families face these difficult situations, and there are clear legal pathways to address them. The key is recognizing the problem and taking action before significant harm occurs. For more information about what to do if you suspect abuse, visit our guide on Power of Attorney Abuse: What to Do If Someone You Know Is Affected or check the latest research on undue influence standards from California’s legal code, which provides valuable insights applicable across many states.

Challenging Power of Attorney: Step-by-Step Guide

When you decide that challenging power of attorney is necessary, taking a thoughtful, organized approach can help you protect your loved one while minimizing family tension.

Preparing Your Case

Before rushing to court, proper preparation will strengthen your position and clarify your next steps:

First, collect all relevant paperwork. This includes the original POA document, bank statements, property records, and any communications between the principal and agent. Look for unusual patterns in spending or decisions that seem out of character for your loved one.

Talk to people who were present when the POA was signed or who have observed the agent’s actions. Their observations can be powerful, especially when documented in writing. When possible, have these statements formalized as sworn affidavits.

“The strongest challenges are built on solid documentation, not just suspicions,” notes Keith Morris. “The more concrete evidence you gather, the more seriously the court will take your concerns.”

You’ll likely need expert opinions to support your case. Depending on your situation, consider consulting with doctors who can evaluate mental capacity, handwriting analysts if forgery is suspected, or financial experts who can trace where money has gone. These professional assessments carry significant weight in court.

Create a detailed timeline showing when the POA was created, changes in your loved one’s health, important financial transactions, and any attempts you’ve made to resolve the situation directly. This chronology helps judges see the full picture.

Finally, make sure you have legal standing to bring a challenge. In Texas, this typically includes the principal themselves (if still competent), close family members, beneficiaries named in estate documents, certain healthcare providers, or adult protective services.

Do You Need a Lawyer When Challenging Power of Attorney?

While technically you can challenge a POA without an attorney, it’s rarely the wisest choice. Here’s why legal help matters:

POA challenges involve complex legal standards that vary by county and court. What works in Harris County might not work in Dallas County. An experienced probate attorney knows these local differences.

The burden of proof typically falls on you as the challenger. You’ll need to convince the court that the POA is invalid or that the agent has breached their duties—a high bar without legal guidance.

Family conflicts naturally stir up strong emotions that can cloud judgment. A good attorney provides objective advice and keeps your case focused on legally relevant issues rather than long-standing family grievances.

Attorneys also bring valuable connections to financial, medical, and forensic experts who can strengthen your case with professional testimony. And their familiarity with how local judges typically rule on similar cases helps shape an effective strategy.

“I’ve seen too many families try to handle these challenges alone, only to come to us later after precious time and resources were wasted,” says Stacy Kelly. “Early legal guidance almost always leads to better outcomes.”

Filing the Court Petition

Once your case is prepared, the formal challenge process begins in earnest:

In Texas, file your petition in the probate court of the county where your loved one lives. Your petition should clearly state your relationship to the principal, your specific concerns about the POA or agent’s actions, what remedy you’re seeking, and a summary of your supporting evidence.

Everyone with a stake in the matter must receive formal notification, including the principal, the agent, other close family members, and any backup agents named in the POA. This legal notice gives them the opportunity to respond to your allegations.

If you believe your loved one is in immediate danger of financial harm, don’t wait. Ask the court for temporary protections like freezing assets, appointing an emergency guardian, or suspending the agent’s authority until a full hearing can be held. Courts take allegations of ongoing exploitation seriously.

Be prepared for your day in court. You’ll present your evidence and testimony, and the agent will have their chance to defend their actions. Judges appreciate clear, factual presentations rather than emotional appeals.

If your challenge succeeds, follow through diligently. Notify all banks, investment companies, and other relevant parties of the court’s decision. This prevents the agent from continuing to act under the invalidated POA.

The timeline varies widely depending on case complexity and court schedules. Simple challenges might resolve in a few weeks, while more complicated situations can take months or even years—especially if the agent contests every step of the process.

Challenging power of attorney is ultimately about protecting someone vulnerable. Keep that focus clear through what can sometimes be a lengthy and emotionally draining process.

Gathering Evidence, Court Actions, and Alternatives

When challenging power of attorney, your success often hinges on the quality and depth of evidence you present. Think of yourself as a detective piecing together a puzzle that shows the full picture.

The strongest cases typically include a variety of evidence types. Financial records like bank statements and property transfers can reveal suspicious patterns or unexplained withdrawals. Medical records near the time the POA was signed may show whether your loved one truly understood what they were signing.

“One of the most compelling pieces of evidence we’ve used in POA challenges is a timeline of medical appointments alongside financial transactions,” says Keith Morris. “When you can show major financial decisions happening days after a dementia diagnosis, it paints a powerful picture for the court.”

Don’t overlook communication records – those emails, texts, and letters can reveal an agent’s true intentions or show isolation tactics. Witness statements from caregivers, neighbors, or family friends who observed concerning behavior are incredibly valuable too.

In complex cases, expert opinions from doctors, forensic accountants, or handwriting specialists can make or break your case. We also recommend gathering prior estate planning documents to show if there’s been a dramatic shift in your loved one’s wishes.

Privacy laws like HIPAA may limit your access to some records. This is where having a lawyer really helps – they can steer these restrictions through proper legal channels and court orders.

Court Outcomes After a Successful Challenge

When you win a POA challenge, the court has several tools to right the wrongs:

The most immediate relief is usually revocation of the POA, immediately stopping the agent’s authority. The court often then appoints a replacement agent – either someone named as backup in the original document or a neutral third party.

Courts take financial exploitation seriously. The former agent will likely face an accounting and return of assets order, requiring them to document every penny spent and return misappropriated funds. In cases of clear misconduct, financial restitution including interest is common.

For principals who lack capacity, the court may establish a conservatorship or guardianship to provide ongoing protection. In severe cases of exploitation, the court may refer the matter for criminal charges – we’ve seen agents face felony charges for stealing from vulnerable seniors.

“The courts in Texas don’t look kindly on those who abuse their fiduciary duties,” Stacy Kelly notes. “In one case we handled, the judge ordered the agent to not only repay $75,000 but also cover all legal fees for the family who brought the challenge.”

Mediation & Family Agreements

Not every POA dispute needs to end up in a courtroom battle. In fact, alternative approaches often yield faster, less expensive, and more harmonious results.

Mediation brings everyone to the table with a neutral third party who helps find common ground. It’s typically less costly than litigation, preserves family relationships, and keeps family matters private rather than in public court records. The solutions can also be more creative than what a court might order.

Family settlement agreements offer another path to resolution. These formal contracts might include regular financial reporting requirements, limits on certain transactions, or appointment of a neutral overseer. They work especially well when the concerns stem from misunderstanding rather than malice.

The collaborative law process is a middle ground where everyone has legal representation but commits to resolving issues without court intervention. Attorneys in this process focus on problem-solving rather than positioning for trial.

“Sometimes what looks like exploitation is actually just poor communication,” Keith often tells worried family members. “I’ve seen cases where an agent was actually making good decisions but doing a terrible job explaining them to the family, creating unnecessary suspicion.”

These alternative approaches work best when there’s still some level of trust and goodwill among family members. When there’s clear evidence of exploitation or the principal is in immediate danger, however, court intervention remains the necessary path.

For more information on fiduciary duties that agents must follow, you can reference the California fiduciary duties code, which provides excellent guidance similar to Texas requirements. If you need help finding an attorney in your area, the FindLaw attorney directory offers a comprehensive listing of legal professionals specializing in elder law and POA disputes.

Preventing Future Disputes & Final Thoughts

The best approach to power of attorney challenges is preventing them before they occur. Creating a thoughtful, well-structured POA can save your family significant heartache, stress, and financial expense down the road.

When establishing your power of attorney, consider these smart preventive measures:

Choose your agent with extraordinary care. This isn’t just about selecting someone trustworthy – they should also demonstrate financial responsibility and the capacity to handle complex decisions during potentially emotional times. As we often tell our clients, “The right agent isn’t always the closest relative, but the most capable one.”

Consider a checks-and-balances approach by appointing co-agents who must collaborate on major decisions, or designating a “monitor” who receives regular financial updates without having direct decision-making authority. This transparency often prevents problems before they start.

Be crystal clear about what powers you’re granting. Vague language invites trouble, especially regarding gifts, loans, or property sales. The more specific you are, the less room there is for misinterpretation or abuse.

Build accountability into your document by requiring your agent to provide regular accounting to family members or a professional advisor. Many of the most problematic cases we’ve handled at Texas Probate Attorney could have been avoided with this simple requirement.

Don’t let your POA gather dust. Review it every few years or after significant life events like divorce, death of an agent, or major health changes. What made sense at 65 might need adjustments at 80.

Perhaps most importantly, have open conversations about your expectations with both your agent and other family members. Many POA disputes stem not from malice but from genuine confusion about the principal’s wishes.

At Texas Probate Attorney, we often recommend including specific language in POA documents that addresses potential conflicts before they arise. For example, authorizing reasonable compensation for the agent’s time and effort can prevent the resentment that sometimes leads to exploitation.

For more information about recent changes to power of attorney forms in Texas, check out our article on Texas Changes Durable Power of Attorney Form. You can also find valuable information about power of attorney standards from the Delaware Courts website, which provides excellent general guidance applicable in many states.

Frequently Asked Questions about Challenging a Power of Attorney

Can family members override a power of attorney?

No, family members cannot automatically override a valid power of attorney simply because they disagree with the agent’s decisions. However, they do have options:

They can ask a court to review the agent’s actions if they suspect misconduct. They can petition for guardianship if they can demonstrate the principal now lacks capacity. They can also request the agent’s removal if they have evidence of improper behavior.

Being next of kin gives you standing to raise concerns with the court, but it doesn’t grant any direct authority to overrule the agent’s decisions. As Keith Morris often reminds clients, “The principal chose their agent for a reason – courts respect that choice unless there’s clear evidence of problems.”

What is the difference between challenging a medical and financial POA?

Challenging power of attorney documents differs significantly depending on whether they cover medical or financial matters.

Medical POA challenges typically center around healthcare decisions, questions about the principal’s end-of-life wishes, concerns about quality of care, and often involve navigating complex HIPAA privacy regulations.

Financial POA challenges, on the other hand, usually focus on asset mismanagement, self-dealing, accounting irregularities, or questionable property transactions.

The standards for capacity also differ slightly between the two. For medical decisions, courts examine whether the principal understood healthcare choices, while financial capacity involves comprehending the nature and consequences of financial transactions.

How does guardianship interact with an existing POA?

In Texas, when a court appoints a guardian, this typically supersedes any existing power of attorney. The process works as follows:

Anyone concerned about the principal’s welfare can file for guardianship. The court then evaluates whether the principal is incapacitated and genuinely needs a guardian. If guardianship is granted, the guardian’s authority generally overrides the POA agent’s powers, though the court may choose to keep certain POA provisions in effect if they don’t conflict with the guardianship.

Guardianship is considered a more restrictive option than a POA because it removes the principal’s rights and places decisions under court supervision. For this reason, courts typically prefer addressing POA abuse by removing the problematic agent rather than imposing guardianship, whenever possible.

As Stacy Kelly often explains to our clients, “Guardianship is the legal system’s last resort, not its first response. We usually have better, less restrictive options to address POA concerns.”

Conclusion

Taking the step of challenging power of attorney isn’t something to be done lightly. It’s a serious decision that deserves careful thought and consideration of all the facts. But when you see clear signs that an agent is abusing their authority or that a POA was created under questionable circumstances, taking action becomes necessary to protect those who can’t protect themselves.

Here at Texas Probate Attorney, Keith Morris and Stacy Kelly bring over four decades of combined experience to these delicate family matters. We’ve guided countless families through the process of protecting their loved ones from financial exploitation and abuse.

“Behind every power of attorney challenge is a family that’s worried about someone they love,” Keith often reminds us. “These aren’t just legal cases—they’re personal stories that deserve compassionate attention.”

We understand the emotional weight these situations carry. Maybe you’ve noticed unusual withdrawals from your mom’s account, or perhaps your dad signed documents during a period when his medication was affecting his judgment. Whatever your concerns, we’re here to listen and help determine the best path forward.

When you work with our team in Houston, Fort Worth, or Austin, you get more than just legal representation. You get advocates who will fight to protect your loved one’s interests while being mindful of preserving family relationships whenever possible.

Time matters in these cases. The sooner you address concerns about a power of attorney, the better chance you have of preventing significant harm. Financial exploitation can drain accounts quickly, and the emotional damage of betrayal by a trusted agent can be devastating.

Have you noticed warning signs that make you uncomfortable? Trust your instincts. Contact us today for a consultation to discuss your situation and learn how we can guide you through the process of challenging power of attorney in Texas.

We’ll help you understand your options, gather the necessary evidence, and take appropriate legal action to protect what matters most—the dignity, security, and well-being of your loved one.