Who Can Override a Power of Attorney?

Families usually ask this question from one of two directions: a sibling is worried the brother holding mom's power of attorney is mishandling her money, or a spouse is furious that a hospital is following an old healthcare POA naming an estranged child. Either way, the answer surprises people. The list of who can override a power of attorney is very short — and "the rest of the family" is not on it.

Person One: The Principal (While They Have Capacity)

The person who signed the power of attorney can override it at any time, as long as they still have the mental capacity to understand what they're doing. A POA is a delegation of authority, not a transfer of rights — your parent keeps every right they delegated.

Revocation in South Dakota should be done properly under SDCL § 59-12-43:

1. Sign a written Revocation of Power of Attorney before a notary public
2. Deliver copies to the former agent
3. Deliver copies to every bank, brokerage, medical provider, and institution where the POA was previously filed

That third step is the one people skip, and it's the one that matters. An institution that has no notice of revocation is generally protected when it honors the old document. If your parent revoked the POA at the kitchen table but never told the bank, the former agent's transactions may still be honored.

A principal can also override a POA without revoking it, simply by acting themselves — the agent's authority runs alongside the principal's, not instead of it. And if the document names an alternate or successor agent, the principal (while competent) can also execute a new POA naming someone else, which revokes the earlier one if drafted to do so.

Person Two: A Court

When the principal no longer has capacity, only a court can override a power of attorney. This happens in two main scenarios.

Guardianship and conservatorship proceedings. If someone petitions the circuit court under SDCL Title 29A and is appointed guardian or conservator, the court's appointment can suspend or terminate the agent's authority — the court order trumps the private document. This is common when a POA exists but the family believes the agent is the problem: the remedy is not ignoring the POA, it's asking the court to displace it.

Judicial review of the agent. South Dakota's Uniform Power of Attorney Act (SDCL Chapter 59-12) allows interested persons to petition the court to review an agent's conduct, compel an accounting of the agent's transactions, and remove an agent who has breached fiduciary duties. Agents are fiduciaries — they must act in the principal's interest, keep records, and avoid self-dealing. A court that finds abuse can strip the agent's authority and order restitution.

Court intervention is slow and public — a contested proceeding typically costs $3,000–$7,000 and takes months — but it is the only lawful lever available once capacity is gone.

Who Cannot Override a Power of Attorney

This is the part families get wrong:

• Adult children and siblings. Majority rule doesn't exist here. Three siblings outvoting the one named as agent changes nothing. If they believe the agent is abusing the role, their remedy is a court petition, not a family meeting.
• A spouse. Marriage confers no automatic authority to override a POA naming someone else.
• Doctors and hospitals. A physician can determine that a patient lacks capacity (which may activate a springing POA or a surrogate decision-maker), but cannot override the agent named in a valid healthcare POA. When family members of the same surrogate class disagree, South Dakota law (SDCL § 34-12C-4) routes the dispute to the circuit court — again, a judge decides.
• Banks. A bank can demand reasonable proof the POA is valid (like the statutory Agent's Certification under SDCL § 59-12-42), but it cannot refuse a properly acknowledged document just because it dislikes the arrangement — South Dakota law requires acceptance within a reasonable time.

The Warning Sign Scenario

If you suspect an agent is exploiting your parent — unexplained withdrawals, a changed will, isolation from family — don't confront the document, confront the conduct:

1. Request records. Interested persons can compel the agent to produce an accounting through the court.
2. Report suspected financial exploitation to South Dakota Adult Protective Services.
3. Petition for guardianship/conservatorship if the situation is urgent; the court can also appoint a temporary emergency fiduciary (SDCL § 29A-5-315) for up to 90 days when irreparable harm is imminent.

The Better Alternative: Design the Document Right Up Front

Most "who can override" disasters trace back to a POA that was drafted without safeguards: no successor agent, no requirement for annual accountings to a sibling, unlimited gift powers, or an agent chosen for geography rather than judgment. A well-drafted South Dakota POA — with explicit durability language (required here under SDCL § 59-12-3, unlike most states), carefully scoped "hot powers," and named successors — prevents the conflict instead of litigating it later.

The South Dakota Power of Attorney & Guardianship Kit includes statutory-compliant POA documents with these safeguards built in, plus the full guardianship roadmap for when court intervention is genuinely the only path left.

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