Can a Power of Attorney Change a Will?
Short answer? No, but the appointed agent can make other important decisions concerning your estate.
When you carry out a power of attorney, you are naming somebody else to act for you. Financial power of attorney is the more widely known kind, but you can also appoint an agent to execute many other duties. Because of this, power of attorney can be an essential part of estate planning—provided that your agent is dependable and trustworthy.
The short answer to if an agent is able to change your will is no. POA does not enable your agent to amend or alter your will. Whereas power of attorney can give an agent considerable power, it does have restrictions. Keep reading to get a better comprehension of what someone can do when they are given power of attorney.
Power of Attorney Doesn’t Allow Someone to Alter Your Will
It is a generally accepted legal model that an agent designated by power of attorney cannot alter a genuinely executed will. State statutes stipulates the criteria concerning the validness of a last will and testament and usually requires the:
- person creating the will (also referred to as the testator) must be sound mentally and at a minimum of 18 years old.
- testator needs to comprehend the nature and scope of the assets that include their estate and who would be authorized to inherit those assets should the testator pass devoid of a will.
- will is required to be in writing (with very restricted exceptions).
- will is required be signed by the testator, or when they’re physically incapable of, at the testator’s guidance and in the presence of the testator.
- two witnesses without any conflicting interest are required to sign the will in the presence of each other.
After your will is properly carried out, it remains in effect unless you rescind it. You can only rescind a will by:
- Writing and carrying out a new will
- Writing a declaration that states you want to rescind your previous will, adhering to the same stipulations as if you were devising a new will
- Destroying your will physically, like by ripping it up or setting it on fire
Note
POA does not give someone the capability to rescind your will.
When you pass away, power of attorney concludes and your will (together with state law) mandates what occurs to your assets.
What Power of Attorney Enables Someone To Do
Stipulations concerning POA might differ among states, but the documentation usually gives your agent the power to execute specific tasks, comprising of:
- Managing financial accounts, including terminating financial institution accounts and providing financial gifts
- Overseeing real estate, including purchasing, selling, or altering title to property
- Devising and funding trusts
- Hiring professionals like attorneys, CPAs, or caseworkers
- Talking to creditors and government entities
- Making decisions for any business you’re owner of
- Taking care of your pets
- Overseeing your digital assets, like email and cryptocurrencies
For instance, if you are going to be abroad for an extended period, you might name a power of attorney to oversee duties like managing bills or selling of property. When you are no longer driving, you might provide your adult child POA so they can sell your vehicle on your behalf.
Note
Whereas your agent can’t alter your will, power of attorney gives them the power to manage (and possibly sell or give away) your assets while you are still living. That’s why it is vital to only give power of attorney to somebody you trust.
Restrictions on What Power of Attorney Permits
One of the most vital concepts to comprehend concerning power of attorney is that your agent can only make decisions that are within the limits of the powers listed in the documentation. For instance, if your agent wishes to sell your truck for you, they are required to show the power of attorney to the DMV to show the documentation gives them that power.
This fact means you can set your own restrictions on what your power of attorney permits. If a duty is not explicitly described in your power of attorney, the agent is unable to make a decision concerning that matter. You can also forbid your agent from being able to take any particular action, like accessing your safety deposit box, by containing that in your power of attorney.
Another option is to restrict your agent’s authority to a specified range of dates, which may be beneficial should you be traveling for an extended period or are briefly debilitated because of illness or injury. Additionally, you can create a power of attorney for a specified action, like signing closing paperwork on the sale of, for instance, a house, if you can’t be available.
Note
POA does not give your agent the capability to make medical decisions for you. For that, you are going to need a separate document referred to as a medical power of attorney (MPOA) or health care proxy.
How To Deal with Possible Issues of Abuse
Giving your agent power of attorney doesn’t mean they can steal or mishandle your assets without repercussions. Your agent owes you their fiduciary duty, meaning they should act in your best interests or in a way with how you would act. If they violate this duty, they can be held accountable both civilly and criminally. If you speculate your agent has done so, you should get a hold of an attorney skilled in estate planning or elder law, law enforcement, or your financial institution (when the issue is related to them).
Should you wish to revoke your power of attorney for whatever reasons, you can provide written notice to the individual named as your agent. You should give a copy of your written revocation to any financial institution or bank that has your power of attorney on file.
Frequently Asked Questions
Below are just a couple of questions concerning a power of attorney:
Where do you get the documents to put in place, revoke, or replace a power of attorney?
Since power of attorney can give expansive, financial power and can easily expedite a setting for abuse of such power, a lot of states have wording that is required by law to be included in your power of attorney documentation. In addition, there are likely rules concerning how a power of attorney is carried out. In many states, forms that don’t adhere to completely are not going to be valid. Although you might be able to find general wording online, it is always best to have an attorney knowledgeable with your state’s laws create your power of attorney document.
For how long is a power of attorney in effect?
You can decide on a time when your power of attorney is going to conclude, but you could also decide to make your agent’s authority undefined, referred to as durable power of attorney. Financial institutions may occasionally attempt to turn down an agent’s authority through power of attorney, particularly when it has been a long time since the POA was carried out. Nevertheless, state laws usually require financial institutions to agree to these powers of attorney providing that they were prepared properly.
Do states have time limits for power of attorney?
Many state agencies might enforce limits on how long a power of attorney particular to that agency’s work could remain in effect. For instance, the California Franchise Tax Board declares that these duties conclude after 6 years. These limits are one other reason why you need to speak with an estate-planning attorney in your state to answer these questions and to devise a power of attorney that is relevant to your needs.
Source:
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Markos, V. B. (2022, July 15). Can a power of attorney change a will? The Balance. Retrieved March 21, 2023, from https://www.thebalancemoney.com/can-a-power-of-attorney-change-a-will-5666974
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