Who Can Override a Power of Attorney and How to Do It

*This blog is on the question of who can override a power of attorney (POA). It is for educational purposes only and should not be considered legal advice. The use of the Paths Law Firm website does not establish a client-lawyer relationship.

As our parents age, we start to question what will happen if they lose the ability to make health or financial decisions on their own.  This leads to a discussion of what we can do to help them if this situation occurs.  Part of the solution may include setting up a power of attorney (POA).

Having a power of attorney can provide a sense of security, knowing there’s a plan to ensure their needs are met and their wishes are respected. We recommend two separate documents; one for health care and the other for general or financial matters. These legal documents allow a trusted person to step in and make important decisions on their behalf, such as managing finances or making healthcare choices, if they cannot do so themselves.

What Kind of Power of Attorney Do I Need?

A power of attorney is a legal document authorizing an “Attorney-in-Fact” (sometimes referred to as an “Agent”) to make decisions on behalf of another person (the Principal), such as a parent or loved one.  If the Attorney-in-Fact is unable or unwilling to act on behalf of the Principal, the POA should also provide successors to the initial Attorney-in-Fact.

The POA gives the Attorney-in-Fact certain “powers,” including handling the Principals’ finances, managing their healthcare, including signing documents. These functions are why it is important to choose someone trusted and be clear if there is something they are not to do. If your chosen Agent is unable or unwilling to act, the POA should also appoint backups, called successors, to ensure there is always someone ready to help when needed.

Discussing the potential of a POA is a good idea when the Principal is of sound mind. Ideally, the Attorney-in-Fact always acts in the Principal’s best interests. However, if there are concerns, alternate agents can be appointed. This ensures there’s always someone reliable to make decisions.

What is a ‘principle’?

In laws on agency, the term “principle” (not to be confused with “principal”) refers to a  rule or belief that guides the relationship between an Agent and a Principal. One such principle is the “fiduciary duty,” which requires the Agent to act in the Principal’s best interests, avoid conflicts of interest, and maintain confidentiality. Another principle is “scope of authority,” which defines the limits of the Agent’s power to act on behalf of the principal. These principles help establish agency relationships and govern how Agents conduct themselves.

In some cases, it may become necessary to remove an Agent. If the Principal wants to change the Agent, they can do so and even revoke a power of attorney at any time. Depending on the Principal’s state specific laws, it is crucial to follow legal steps to revoke or amend the POA to avoid complications.

Who Can Override a Power of Attorney (POA)?

Typically, a power of attorney can be overridden by the Principal, the person who granted the power in the first place. This can be done at any time as long as the Principal has the mental capacity to do so. 

If there is evidence of abuse or of the Agent acting beyond their authority, a court can intervene, removing the Agent. Understanding the specifics of these scenarios can help you take the proper steps to protect your family’s interests. Additionally, the court system can review the case if there are disputes regarding the Agent’s authority.

What Types of POA Exist?

A POA is needed to represent an incapacitated person’s rights, obligations, and desires for estate planning purposes. Generally, a qualified estate planning attorney will define the responsibilities upon which the Attorney-in-Fact can act.  

There are two primary types of power of attorney:

  1. Medical and/or Healthcare POA: allows the Attorney-in-Fact or Agent to make medical decisions for the Principal. This is often referred to as an Advanced Healthcare Directive. The medical power of attorney expressly grants authority to act on health-related decisions.
  2. Financial and/or General POA: grants an agent the right to make non-health-related decisions for the Principal.

If both types of power of attorney are created, the same person may act as Agent for both, the health care and financial POA.  However, some family situations are better resolved when the persons acting as Attorneys-in-Fact are different for the durable powers of attorney.

A judge ruling in an action to remove the agent

Immediate & Springing POA

Wondering “What type of power of attorney do I need?” This section has the answer. 

The general power of attorney may be effective immediately upon signing, at a certain period of time, or for a specific purpose only.  When the POA is immediately effective, authority is granted to the Attorney-in-Fact regardless of the Principal’s ability to make decisions on their own. When it is effective at a certain time, that time is usually described in some way indicating incapacity. When effective upon Incapacity, it is referred to as a “springing power of attorney.”

To distinguish an Immediate and Springing POA, let’s cite an example:

  • Immediate Power: Marge is 85 years old. Her health has been declining in the past few years, and Mary, her daughter, has been helping her more and more lately. Marge will be relieved if she relinquishes the authority to deal with financial and health matters. It will be practical for Mary to handle the financial affairs on behalf of her mother.
  • Springing Power: As part of Andrew’s estate plan, he created a power of attorney in which he designated his wife, Stephanie, as his Attorney-in-Fact if he became incapacitated. Andrew also assigned his son, Vincento, as Stephanie’s successor. Because the POA is set up as “springing”, Stephanie can only act if Andrew becomes incapacitated. Stephanie will only assume the responsibility of an Attorney-in-fact if Andrew can no longer make decisions independently because of health reasons. In the same vein, Vincent will only become a successor if his mom, Stephanie, also becomes incapacitated.
Seeking legal advice for the drafting of a power of attorney

Durable vs. Non-Durable POA

For estate planning, in which we are planning in case the Principal becomes incapacitated or passes away, the powers of attorney are typically “durable.” This situation means the Attorney-in-Fact has the power to act on behalf of the Principal regardless of mental condition.  

However, some POAs can be non-durable. A non-durable POA grants the Agent power to act on behalf of the Principal only if the latter is of sound mind. This POA is typically provided for a specific purpose only. An example is when one spouse works abroad, and the other needs to act on their behalf to sell marital property.

Choosing an Agent for Your POA

When a power of attorney is created, choosing the Attorney-in-Fact is a crucial step.  This is a significant decision for both the Principal and the Agent.  

You’re the Principal, your Attorney-in-Fact (a.k.a Agent) should be someone you trust to act in your best interest. It is important to include detailed instructions to make the Agent’s job easier and within legal boundaries. In the case of finances, it is essential to consider your Agent’s financial expertise. It is helpful if he is also a financial advisor to assist you with financial decisions.

Choosing an Agent can be a difficult family conversation, especially if the right person for the job is not a family member. Other family member’s emotions can certainly hinder the decision-making process. In this case, an estate planning attorney can help counsel all the parties involved to hopefully avoid or lessen family conflict. 

Ensuring the Principal’s wishes are honored requires careful consideration. It’s also a good idea to have alternate or successor Agents listed. This provides a backup if the first Agent cannot serve.

An adult daughter talking about getting a power of attorney with her elderly parent

Need to Override a Power of Attorney?

Proper execution of a POA in Missouri or Kansas only requires a notary public to witness the fixing of signatures by the parties. Some states, such as Florida, require witnesses. If there are responsibilities related to real estate transactions, the legal documents should be recorded with the county’s Recorder of Deeds.  

The decision to execute a durable power of attorney is very personal. Not seeking legal advice could be costly and prolong litigation in probate court. 

If you’re planning for your own estate, it is smart to establish a POA while you’re of sound mind. Without an estate plan or a POA documenting your wishes, your family could end up in court fighting for claims on your estate. Planning ensures that your wishes are carried out and family relations are peacefully maintained. 

If you’re planning for someone else’s estate, it’s important to know who can override a power of attorney if issues arise. If the Principal is of sound mind, only the Principal can make changes. To change or remove the agent, the principal must create a new POA document. This action ensures that the new Attorney-in-Fact will act according to the Principal’s wishes.

In some cases, the court may need to step in to revoke the authority granted in powers of attorney. This situation usually happens when there is abuse or the agent is not acting in the principal’s best interest. In such cases, it is vital to have alternate Agents listed in the original POA document. Having a solid plan in place can prevent legal battles and ensure a smooth transition.

Need to execute or override a power of attorney? Contact Paths Elder Law. Our caring and experienced staff is here to help.

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Client Care Advisor

Amy L. Gonzales

Amy L. Gonzales

Client Care Advisor

Amy L. Gonzales

Amy is our Client Care Advisor and brings over 20 years of combined experience in healthcare and senior living. She has a passion for helping seniors and their families navigate the often-difficult next steps. Her role at Paths Law Firm includes assistance with placement services, for those needing senior living options, as well as client satisfaction and supporting the marketing efforts. She never tires of hearing the life stories of our clients and brings experience and compassion to wherever they are in their journey.
 
Amy attended the University of Missouri in Columbia, Missouri. She was the Director of Sales for a home IV therapy and home care company, an Executive Director for an independent living community, and spent a season as a licensed realtor for both Missouri and Kansas. She has also worked for several years in assisted living and memory care. She co-authored a book called The MyDucks Personal Organizer, which is a tool to help individuals manage their medical, legal, personal, and legacy information. She spent several years as a speaker throughout Kansas City helping to educate and motivate people to get their “ducks in a row”!
 
She is blessed to be married to her husband, Ed, and they have a blended family with 5 grown children. Much of their time is now spent caring for their golden retrievers, enjoying time with family, and traveling whenever possible.

Legal Assistant

Mia G. Santora

Mia G. Santora

Legal Assistant

Mia G. Santora

Mia plays a key role as our dedicated Legal Assistant, collaborating closely with our paralegals on estate planning document preparation. She also supports our attorneys to ensure top-notch service for all our clients. In addition to her legal responsibilities, Mia supports our marketing team with client relations and is the Paths Membership Program coordinator. With a strong background in Project Management, Mia has gained valuable experience from diverse professionals across the country, having lived in Florida and California before joining our team. She graduated with honors from the University of Missouri-Kansas City, earning a bachelor’s degree in political science with a minor in communications.
 
Mia is always eager to learn the intricacies of elder law and brings a positive attitude to her work. Outside of the office, she enjoys enriching her mind through reading and spending quality time with her two dogs.
 

Community Relations

Jeane M. Fracassa

Jeane M. Fracassa

Community Relations

Jeane M. Fracassa

Jeane Fracassa – a dedicated and accomplished professional who retired with an impressive 38-year service record from the Kansas City Missouri Police Department. Throughout her illustrious career, Jeane served as a Civian Supervisor in the Communications Unit, where she played a pivotal role in ensuring efficient and effective communication within the department.

Even in retirement, Jeane’s commitment to community service remains unwavering. Currently, she serves in various capacities within Community Relations at Paths Law Firm. Actively engaged in the Lee’s Summit and Overland Park communities, she proudly represents the law firm.

In all aspects of her life, Jeane Fracassa exemplifies the values of community, compassion, and family. Her commitment to making a difference and her love for exploration make her a remarkable individual, whose presence brightens the lives of those she encounters. Whether at work, with family, or during her travels, Jeane’s genuine care for others and her zest for life make her a truly remarkable and inspiring person.

Administrative Assistant

Laura E. Messer

Laura E. Messer

Administrative Assistant

Laura E. Messer

Laura is the Law Firm’s marketing assistant, supporting all marketing tasks, including managing calendars, researching upcoming events, updating marketing software and spreadsheets, and partnering with organizations to maintain relationships that benefit Paths Law Firm’s clients.  Laura is also the law firm’s professional photographer as she provides the professional photographs for the headshots, organizations, events, and networking.

Laura has over 10 years of experience as a professional photographer.  She is also Adobe and Microsoft Certified.  She graduated from Columbia College, Columbia, Missouri with her Bachelor of Arts degree, Magna Cum Laude, in Behavioral Psychology (minors in Social Work and Criminal Justice), and her Photographic Craftsman degree from Professional Photographers of America. She is certified as a Qualified Mental Health Professional, Certified Gentle Teacher, Medicaid Billing Certified, Crisis Intervention Counselor, and a Missouri Notary.

Laura has been married more than 26 years and has a daughter and a son. She has four brothers, a niece, and a nephew. Her four spoiled pets that love her attention. A lot of Laura’s off time is spent taking photos and she is an internationally published photographer. Laura owns a studio on the historic Independence Square. 

Administrative Assistant

Holly D. Bramble

Holly D. Bramble

Administrative Assistant

Holly D. Bramble

Holly is our newest member of the administrative team. She is hardworking, has proven organizational skills and excellent communication skills. Holly has transitioned to the Estate Planning field from healthcare administration where she gained valuable knowledge that has contributed to her success here at Paths.

Holly enjoys spending time with loved ones, cheering for the Chiefs, and relaxing on the beach.

Administrative Assistant

Tressa L. Purdy

Tressa L. Purdy

Administrative Assistant

Tressa L. Purdy

Tressa has the important role of being a client’s initial point of contact as the law firm’s receptionist for all locations.  She also welcomes, assists, and cares for clients at the Lee’s Summit office. Additionally, she provides support in an administrative capacity for the attorneys, staff, and clients.  When you meet Tressa, the first quality many note is her readiness to be of assistance.

 

Tressa is a graduate of Park Hill High School with extensive administrative experience and executive level management. Tressa brings a stability and comfort to the law firm experience having worked in a variety of industries and having lived in six different major metropolitan cities.

 

Tressa has a daughter, two sons, and one grandchild.  In her free time, she enjoys her family and friends, loves being outdoors, gardening, bike riding and bird watching. Indoor hobbies include scrapbooking, painting cookies, and cheering on Chiefs football. She is a Kansas City native but enjoys traveling but is always happy to be back in her hometown.  

Attorney

Kathleen E. Overton

Kathleen E. Overton, Attorney

Attorney

Kathleen E. Overton

Kathleen Overton is an attorney and owner at Paths Law Firm. She has more than 17 years of experience advocating for those with special needs and navigating the state and federal agencies formed to help the disabled and elderly. At Paths Law Firm, Kathleen’s practice focuses on helping the elderly qualify for nursing home Medicaid, creating estate plans to protect beneficiaries, as well as a lot of time planning and forming businesses. Kathleen also enjoys helping clients form non-profit organizations and obtain 501(c)(3) tax exempt status.

 

After attending law school at the University of Oklahoma, Kathleen began representing clients before the Social Security Administration. Eventually her practice switched to federal court appeals and Kathleen spent years representing clients before the Eastern and Western District of Missouri, the District of Kansas, and the Eighth Circuit Court of Appeals. Kathleen has since focused her practice on estate planning and elder law after watching clients struggle to find ways to financially care for loved ones with special needs or aging parents.

 

Kathleen lives in the Northland with her husband and four children. She spends her free time attending soccer matches and ballet performances with her children and starting endless home improvement projects with her husband. 

Medicaid paralegal

Tena K. Dooley

Tena K. Dooley

Medicaid Paralegal

Tena K. Dooley

Tena is a Medicaid Paralegal.  She is very meticulous and organized.  She works closely with the attorneys, clients, and State representatives. 

Tena has an associate in applied science and has over 20 years of office management experience. She has two daughters and one grandson.

Tena enjoys spending time with her family.  She enjoys everything outdoors and her hobbies include fishing and gardening.

PARALEGAL & ACCOUNTANT

Sydney R. Morris

Sydney R. Morris

PARALEGAL & ACCOUNTANT

Sydney R. Morris

Sydney is the law firm’s internal accountant and one of their experienced paralegals having been with Paths Law Firm since 2017. She is a primary point of contact for estate planning and business planning.

Sydney graduated with honors from the University of Missouri Kansas City in 2022 with her Bachelor of Science Degree in Accounting. She is a Bloch Launchpad, Phi Theta Kappa, and National Honor Society alumni.

In her free time, Sydney enjoys spending time with her husband, reading, baking and going on long walks. 

SENIOR ADMINISTRATIVE ASSISTANT

Christy L. Phillips

Christy L. Phillips

SENIOR ADMINISTRATIVE ASSISTANT

Christy L. Phillips

Christy has three years of experience in elder law working for seniors and their families. She is currently the Senior Administrative Assistant and organizes the day to day functions of the office and makes sure everything runs smoothly. When asked why she loved what she does, Christy said at Paths Law Firm, she gets the opportunity to help clients in more ways than one. Her favorite parts of the job are getting to know the clients and helping them get their questions answered. 

Christy’s experience in the finance industry has been extremely beneficial to her role as the Senior Administrative Assistant. Christy has a special place in her heart for the elderly and attributes this to the relationship she had with her grandparents. 

Christy was raised in Ogden, Utah and moved to Independence, MO, when she was ten years old. She has been with her high school sweetheart for 25 years and they have two beautiful children together. Her daughter works in the medical industry, and her son currently attends High School and plays Baseball. When Christy is not working, she enjoys crafting and spending time with her family and friends.

Christy’s experience in the finance industry has been extremely beneficial to her role as Benefits Coordinator. There have been many influences that went into her decision to select the field of Elder Law. Christy has a special place in her heart for the elderly and attributes this to her relationship with her grandparents.

When asked why she loves what she does, Christy said that at Paths Elder law, she gets the opportunity to help clients in more ways than one. Her favorite part of her job is getting clients approved for Medicaid or VA benefits as it is a huge relief for them and their loved ones.

Christy was raised in Ogden, Utah, and moved to Independence, MO, when she was ten years old. She has two children that keep her busy and fill her life with joy! Christy’s daughter cheers for Avila University, and her son plays competitive baseball for the Bucks and races BMX locally for the Motorcycle Closeout Team.

When Christy is not working, she enjoys crafting and making homemade gifts for her loved ones and raising her kids to be healthy, happy, and positive humans.

 

Practice Areas

  • Medicaid Benefits
  • VA Benefits

 

Professionalc Memberships and Affiliations

  • Missouri Notary

FINANCIAL MANAGER

René A. Fracassa

René A. Fracassa

FINANCIAL MANAGER

René A. Fracassa

René is the Financial Manager at Paths Law Firm overseeing all aspects of revenue, expenses, and financial planning. She is also responsible for general office management, including assisting in many of the administrative matters that periodically arise. 

René earned her Bachelor of Science in Hotel and Restaurant Management from Central Missouri State University in Warrensburg, Missouri and soon thereafter worked her way through management at The American Restaurant where she worked almost 17 years before relocating to the country of China.

In her spare time, René is currently quite active managing multiple generations of her family, including parents and grandkids.  René has had great impact on the lives of many women teaching discipling and teaching and abundance of Bible Studies. Her former career in management and event planning trained her well to juggle all the activity.

MARKETING MANAGER

Hilary R. Tichota

Hilary Tichota

MARKETING MANAGER

Hilary R. Tichota

Hilary plays a vital role in managing the Marketing Department at Paths Law Firm.  She is excellent at bringing new ideas and sharing valuable resources with the law firm and our community. Hilary has been with the law firm since the beginning, working in nearly every role which is invaluable in her marketing endeavors as she brings a unique set of skills into the Marketing Department.

Hilary is nearly complete in her Bachelor’s of Arts Degree in Marketing at Park University.  She has earned the honor of being listed in National Honors Society, Phi Theta Kappa, and the Dean’s List. Hilary is always looking for new and innovative ways to share the law firm’s message.

SR. PARALEGAL & OPERATIONS MANAGER

Jennifer A. Bronson

Jennifer Bronson

SR. PARALEGAL & OPERATIONS MANAGER

Jennifer A. Bronson

Jennifer is the Sr. Paralegal and Operations Manager at Paths Law Firm.  She oversees the firm’s probate department as well developing, implementing, and managing all the firm’s administrative processes having been with the law firm almost from the beginning.  She enjoys client contact as well as behind-the-scenes operations.

 

Jennifer began her legal career in 1990 as a legal secretary.  She has worked in small and medium sized firms, as well as court operations.  She has her Paralegal Certificate from Boston University, Law Office Management Certificate from University of Central Missouri, and she is a Master Financial Coach. 

 

Jennifer has two daughters, twin sons, and twin grandsons.  She spends as much time as she can with them.  She enjoys reading, listening to podcasts, and tending her yard. 

ATTORNEY

Russell A. Fracassa (Rusty)

Attorney Russell A. Fracassa

ATTORNEY

Russell A. Fracassa (Rusty)

When asked what he wants to do, his reply was “I just want to sit at the kitchen table and work directly with people.” Rusty enjoys working with clients providing experienced advocacy and supporting them through their unfamiliar and overwhelming situations. Due to all the challenges faced by seniors, it is essential to work with an experienced elder law attorney who has expertise in the law, issues, and concerns affecting seniors and their families.

Rusty brings more than 30 years legal experience and expertise working for seniors and their families as an elder law attorney in Kansas City and surrounding. Prior to law school, Rusty was an accountant and his first couple years practicing law was as a tax attorney. This provides invaluable experience in his current practice of law. Rusty’s focus is helping protect seniors’ assets from taxes and long-term care costs, benefit qualification, and navigating more complex family scenarios in their estate planning.

Rusty has personally experienced the loss every parent fears, caring for a spouse suffering with cancer and the treatment, and working with aging parents through all stages of their lives.  He intimately understands the challenges faced by individuals and their caretakers when capacity or health declines, how to prepare for it, and the legal matters while in the midst of it.  He may not be able to eliminate his client’s grief, but he strives to provide clients with peace of mind.

In 2010, Rusty’s faith and love led him and part of his family to China as Christian missionaries. He and his wife, went permanently, but ended up dedicating 3 years to that ministry. They returned to Missouri to help with grandchildren after a family tragedy and later began anew with Paths Elder Law. The goal is providing compassionate care through legal advocacy.

Rusty has multiple degrees and advanced study spanning his Bachelor’s of Arts in Business Administration – Accounting at Rockhurst College (now Rockhurst University), Masters of Arts in Accounting and in Intercultural Studies, as well as his Juris Doctorate from the University of Missouri at Kansas City School of Law.

When Rusty is not practicing law, he enjoys spending time with his family, grandchildren, and excessive eating at local restaurants.

Practice Areas

  • Wills and Trusts
  • Estate Planning
  • Asset Protection
  • Medicaid Benefits
  • VA Benefits
  • Probate
  • Guardianship and Conservatorships
  • Education

 

BSBA and Master’s in Accounting, Master’s in Inter-Cultural Studies, and Doctorate in Juris Prudence

  • Rockhurst University
  • Liberty University
  • University of Missouri – Kansas City


Admissions to Practice

  • Missouri


Professional Memberships and Affiliations

  • State Bar of Missouri
  • National Academy of Elder Law Attorneys (long-time Member)
  • Elder Counsel (Charter and Ongoing Member)
  • Missouri Association of Trial Attorneys (Past Member)
  • Kansas City Metropolitan Bar Association
  • Missouri State Bar Committees – Elder Law, Estate Planning, Probate