Can the Power of Attorney Change a Will?

No, a power of attorney (POA) cannot change a will. This is a fundamental legal principle designed to protect the integrity of a person’s final wishes. Let’s explore why this is the case and what powers a POA actually grants.

Understanding the Power of Attorney

A power of attorney is a legal document that allows an individual (the principal) to appoint someone they trust (the agent or attorney-in-fact) to manage specific aspects of their affairs. These may include:

• Financial Decisions: Managing bank accounts, paying bills, or making investments.
• Medical Decisions: Deciding on medical treatment if the principal becomes incapacitated.
• Legal Decisions: Signing contracts or dealing with legal matters on the principal’s behalf.

While the scope of authority can be broad or limited, it does not extend to changing, altering, or revoking a will.

Why Can’t a POA Change a Will?

1. Wills Reflect Personal Intent: A will is a document that captures the testator’s (the person making the will) final wishes regarding the distribution of their estate. These wishes cannot be overridden by another person, including an agent under a POA.
2. Legal Capacity: Making or changing a will requires the testator to have mental capacity at the time of execution. This ensures the document reflects their informed and voluntary choices. A POA, even with broad powers, cannot substitute their own intent for the testator’s.
3. Specific Legal Protections: Laws in most jurisdictions explicitly prevent an agent from altering a will. Even if the POA grants the agent broad authority over financial and legal matters, it does not include authority over testamentary documents like wills.
4. Conflict of Interest Prevention: Allowing an agent to modify a will could lead to conflicts of interest or misuse of power. For example, an agent might try to alter the will for personal gain, which would undermine the principal’s true intentions.

Related article for you:
What Kind of Lawyer Do I Need for a Will and Trust?

How Can a Will Be Changed?

If a principal wishes to update their will, they must:

• Create a Codicil: A codicil is a legal amendment to an existing will. It must be signed and witnessed according to the same legal standards as a will.
• Draft a New Will: If significant changes are needed, it may be simpler to revoke the old will and create a new one.
• Ensure Mental Capacity: The principal must have the mental capacity to understand the changes being made.

Common Misconceptions

• Misunderstanding Authority: Some people mistakenly believe a POA grants total control over all legal documents. However, a POA’s powers are limited to what is explicitly outlined in the document.
• Estate Administration: An executor (appointed in the will) manages the estate after the principal’s death, not the agent under a POA. A POA ceases to be valid upon the principal’s death.

Practical Tips

1. Choose Agents Wisely: When granting power of attorney, select someone trustworthy who will act in your best interest.
2. Communicate Clearly: If you anticipate changes to your will, discuss them with your legal advisor to ensure proper steps are taken.
3. Seek Legal Advice: Consult an estate planning attorney for guidance on drafting wills, appointing agents, and ensuring your wishes are legally protected.

Conclusion

In summary, a power of attorney cannot change a will. Wills are personal documents that reflect the testator’s wishes and can only be altered by the testator themselves, provided they have the legal capacity to do so. If you’re concerned about how a POA interacts with your estate planning, consulting a qualified attorney can help you navigate these important legal matters effectively.