Can Person with Power of Attorney Change Will?

Understanding whether a person holding power of attorney (POA) has the authority to change a will can be vital for protecting legal rights. This topic delves into the nuances of power of attorney, the scope of authority granted, and the limitations imposed by law. It’s essential to note that a will is a highly personal document meant to express the testator’s final wishes. While a POA can manage various legal and financial matters, altering a will is usually beyond their authority.

What is Power of Attorney?

A power of attorney is a legal document in which an individual (the principal) grants another person (the agent or attorney-in-fact) the authority to act on their behalf. Depending on the principal’s intentions, POA arrangements can be specific or broad. Common types of POA include:

• General Power of Attorney: Grants broad authority over financial and legal matters.
• Special Power of Attorney: Restricts authority to specific actions, such as selling property.
• Durable Power of Attorney: Remains effective even if the principal becomes incapacitated.
• Medical Power of Attorney: Covers healthcare decisions when the principal cannot make them.

What Power Does the Attorney-in-Fact Hold?

The agent’s powers depend on the terms outlined in the POA document. They may include:

• Managing finances and bank accounts.
• Making investment decisions.
• Paying bills or debts.
• Handling real estate transactions.
• Filing taxes on behalf of the principal.

However, these powers do not typically extend to altering a principal’s will.

Can a Person with Power of Attorney Change Will?

A person with power of attorney cannot legally change a will. A will is a personal document reflecting the testator’s wishes regarding asset distribution after death. Only the person who created the will (the testator) has the authority to amend or revoke it. Here’s why:

• Legal Limitations: POA laws explicitly prohibit agents from making changes to the principal’s will.
• Testator’s Intent: A will expresses the testator’s final wishes, which must remain untouched unless they revise it.
• Conflict of Interest: Allowing an agent to alter the will could lead to ethical and legal conflicts.

What Happens if the Testator Becomes Incapacitated?

If the testator becomes incapacitated, the power of attorney may grant the agent control over financial and legal decisions, but it still does not extend to making changes to the will.

Key Differences Between Power of Attorney and Executor of a Will

It’s common to confuse the roles of a POA agent and an executor. However, their responsibilities differ significantly:

What if the Will Conflicts with POA Actions?

Sometimes, disputes arise when actions taken by the POA agent appear to conflict with the testator’s will. For example:

• An agent sells property listed in the will.
• The agent makes financial decisions that impact inheritance.

In such cases, the testator’s intent, as expressed in the will, usually prevails. Beneficiaries may need to contest these actions in court if they suspect misuse of the POA.

Steps to Protect a Will from Unauthorized Changes

To ensure a will remains secure and reflects your wishes, consider these steps:

1. Appoint a Trusted POA Agent: Choose someone who will respect your intentions.
2. Communicate Your Wishes: Share your goals with your POA agent and executor.
3. Use Safeguards: Store the will in a safe, secure location.
4. Regularly Update the Will: Reassess and update your will as circumstances change.
5. Consult an Attorney: Seek legal advice to minimize risks.

Why Can’t a POA Change a Will?

The prohibition against changing a will is rooted in legal principles. Here’s why this rule exists:

• Preservation of Autonomy: The testator’s final wishes must remain intact.
• Prevention of Fraud: Allowing changes could open doors to manipulation or abuse.
• Role Definition: The POA agent’s role is to manage, not redefine, the principal’s affairs.

What Happens if Someone Tries to Alter a Will Using POA?

Attempting to alter a will with power of attorney is illegal and can lead to severe consequences, such as:

• Criminal Charges: Fraud or forgery accusations.
• Legal Challenges: Beneficiaries may contest the changes in court.
• Nullification of Changes: Courts will invalidate unauthorized amendments.

Signs of Power of Attorney Misuse

Family members or beneficiaries should stay vigilant for signs of misuse, including:

• Sudden or unexplained financial decisions.
• Selling assets without clear justification.
• Withholding information about the principal’s finances.
• Altering accounts to favor one beneficiary.

Can a Testator Revoke a Will Using POA?

No, a POA agent cannot revoke a will. However, the testator can do so personally if they are of sound mind. They may:

• Create a new will that explicitly revokes the old one.
• Destroy the original will to prevent its enforcement.

Steps for Amending a Will Safely

If the testator wishes to amend their will, they must take specific steps:

• Consult a Lawyer: Ensure changes comply with legal requirements.
• Use a Codicil: Add a legally binding amendment to the existing will.
• Create a New Will: Draft a new document if extensive changes are needed.

How Can Beneficiaries Protect Their Inheritance?

Beneficiaries can take proactive measures to safeguard their inheritance:

• Understand the Will’s Terms: Stay informed about its contents.
• Monitor the POA Agent’s Actions: Look for irregularities in financial decisions.
• Seek Legal Advice: Consult an attorney if misuse is suspected.

Conclusion

In conclusion, the answer to “Can a person with power of attorney change will?” is a resounding no. While a power of attorney grants significant authority, it does not extend to altering a will. This legal safeguard ensures the testator’s final wishes are respected, preventing potential abuse or conflicts of interest. Individuals can ensure their legacy is protected by understanding the limits of a POA, appointing trustworthy agents, and regularly reviewing estate documents.

FAQs

Can power of attorney override a will?

No, a POA cannot override a will. The will governs asset distribution after death, while the POA applies during the principal’s lifetime.

Who has more authority: the POA agent or the executor?

The executor has authority over the estate after death, while the POA agent’s powers end upon the principal’s death.

Can a POA agent create a new will?

No, only the testator can create or amend their will.

What happens if a POA agent abuses their authority?

Beneficiaries can contest the agent’s actions in court, leading to possible legal consequences for the agent.

Can the court intervene in POA disputes?

Yes, courts can step in to resolve disputes and revoke POA if misuse is proven.

Can a will include provisions for POA oversight?

While a will and POA are separate documents, the testator can specify certain safeguards to prevent misuse.