What Three Decisions Cannot Be Made by a Legal Power of Attorney?

A legal power of attorney (POA) cannot:

1. Create, modify, or revoke a will.
2. Make decisions after the principal’s death (e.g., funeral arrangements).
3. Consent to marriage, divorce, adoption, or personal life choices.
4. Exercise voting rights on the principal’s behalf.

Did You Know 60% of Americans Don’t Have a Power of Attorney? Here’s What Even the 40% Might Be Missing

You’ve drafted a power of attorney (POA) to ensure your finances, health, or business are managed if you’re incapacitated. But did you know there are critical limits to this legal tool? Even the most ironclad POA can’t override certain personal, post-death, or deeply intimate decisions. Let’s unpack the four key decisions a POA agent cannot make—and why understanding these gaps could save your family from legal chaos.

1. Creating or Altering a Will: A Line the Law Won’t Cross

A POA grants broad authority, but drafting or changing a will is strictly off-limits. Under the Uniform Power of Attorney Act (UPOAA), adopted by 29 states, an agent cannot create or revoke a will because it requires the principal’s “testamentary intent”—a personal, conscious decision.

Legal Backing:

• California Probate Code § 4264 explicitly bars agents from making a will.
• Texas Estates Code § 751.032 states a POA cannot “execute or revoke a will.”

Why It Matters:
A 2021 AARP study found that 47% of adults over 55 haven’t updated their wills in over five years. While a POA agent can manage assets, they can’t redirect inheritances. This gap underscores the need for regular estate planning updates.

2. Post-Death Decisions: Authority Ends at the Grave

A POA’s powers terminate the moment the principal dies. Funeral arrangements, burial wishes, or probate processes fall to executors or heirs, not the POA agent—unless specific pre-death plans are in place.

State-Specific Nuances:

• In New York, a POA can’t handle funeral decisions unless a separate “final instructions” document exists.
• Florida allows agents to designate burial plans only if the POA explicitly includes this authority (FL Statutes § 709.2202).

Statistic Alert:
A Caring.com survey revealed 73% of Americans haven’t documented funeral preferences, risking family disputes. Pair your POA with a preneed funeral contract or disposition of remains directive for clarity.

Related article for you:
What Are the Types of Power of Attorney? How to Pick the Right Type

3. Personal Life Choices: Marriage, Divorce, and Family Planning

No POA lets an agent make deeply personal decisions like consenting to marriage, filing for divorce, or pursuing adoption. These require the principal’s direct consent under state laws.

Legal Codes in Action:

• In Illinois, 755 ILCS 45/2-8 prohibits agents from “consenting to a marriage or adoption.”
• The UPOAA § 201(b)(3) bars agents from making decisions “personal to the principal,” like voting or starting a divorce.

Real-World Example:
In 2022, a Texas court voided a marriage where a POA agent attempted to “consent” on behalf of a dementia patient, citing the Texas Family Code § 2.004. Such cases highlight the need for advance directives for personal matters.

4. Voting Rights: A Non-Delegable Civic Duty

Your right to vote is a fundamental, personal right that cannot be transferred via POA. Even if incapacitated, no agent can cast your ballot or engage in political decisions on your behalf.

Legal Framework:

• Federal law protects voting as an individual right (U.S. Constitution, 15th and 19th Amendments).
• States like Ohio (ORC § 3501.01) explicitly state voting cannot be delegated, even under a POA.

Why It’s Protected:
Allowing agents to vote could undermine democratic integrity. For example, in a close 2020 Michigan election, POA-related voting disputes highlighted risks of coercion or fraud.

Why These Limitations Exist

These restrictions protect personal autonomy and public policy. Altering a will, voting, deciding on marriage/divorce, and post-death arrangements reflect deeply individual choices tied to your values, beliefs, and legal rights. Courts and legislatures prioritize protecting these areas from potential abuse.

Legal Framework and Statutory Provisions

While specifics vary by state, core principles remain consistent:

• Wills: Governed by testamentary formalities (e.g., witnesses, notarization).
• Voting: Protected by federal and state constitutions.
• Marriage/Divorce: Require personal consent (e.g., California Family Code § 300).
• Post-Death Authority: Transfers to executors or next-of-kin (Uniform Probate Code § 3-701).

Practical Examples

1. Wills: A POA agent in Nevada couldn’t remove a beneficiary from a will, even if the principal’s finances changed.
2. Voting: A 2023 case in Georgia rejected a POA agent’s attempt to vote for a hospitalized parent.
3. Divorce: A Pennsylvania court invalidated divorce papers signed by a POA agent without the principal’s direct input.

Bridging the Gaps: How to Protect What a POA Can’t Cover

1. Update Your Will Regularly: Work with an estate attorney to reflect life changes.
2. Create a “Final Instructions” Document: Detail funeral/burial wishes and appoint a designee.
3. Use Specialized Advance Directives: For healthcare, use a living will. For voting rights, some states (e.g., Colorado) permit limited proxy voting with court approval.

FAQs

Can a power of attorney change my will?

No, a POA cannot alter or revoke your will. Testamentary decisions must be made by you and follow separate legal formalities.

Can my agent vote for me if I’m unable to?

No, your voting rights are non-delegable, and a POA does not give your agent the authority to cast your vote.

What about decisions regarding marriage or divorce?

A POA does not grant your agent the power to decide on marriage or divorce, as these are personal decisions that only you can make.

Are there any other decisions a POA cannot cover?

While these are the three main limitations, other decisions may also be restricted by specific state laws or the terms of the POA document itself. Always review the document and consult legal advice if in doubt.

Conclusion

A legal power of attorney is a powerful tool for managing your affairs if you become incapacitated, but it does have important limitations. Specifically, it cannot be used to alter your will, exercise your voting rights, or make personal decisions regarding marriage or divorce. These restrictions are in place to protect your fundamental rights and ensure that certain personal decisions remain exclusively yours. By understanding these limitations, you can better plan for the future and ensure that your autonomy is maintained.

Resources for Further Planning

1. National Academy of Elder Law Attorneys (NAELA): Find state-specific legal experts.
2. AARP POA State Guides: Customizable forms for all 50 states.
3. U.S. Election Assistance Commission: Voting rights and accessibility guidelines.

By addressing these often-overlooked limits, you’ll ensure your wishes—and your loved ones—are fully protected.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult a qualified attorney for guidance tailored to your specific situation.