Can a Power of Attorney Change a Will?
No, a power of attorney (POA) generally cannot change a will. This is a crucial distinction to understand because many people confuse the powers granted by a POA with the ability to alter a last will and testament. A POA grants someone (the agent or attorney-in-fact) the authority to manage the principal's (the person granting the POA) financial and/or healthcare affairs while they are still alive. A will, on the other hand, only comes into effect after the person's death, dictating how their assets will be distributed.
The fundamental difference lies in the legal capacity of the principal. A POA operates while the principal is still alive and capable of making decisions, even if they are limited in their ability to do so. The POA acts on behalf of the principal. A will, however, dictates actions to be taken after the principal's death; the principal is no longer capable of making decisions or managing their affairs. Therefore, a POA, no matter how broad its scope, simply doesn't have the legal authority to modify or revoke a will.
What Can a Power of Attorney Do?
A POA can handle a wide range of tasks depending on its specific terms. Commonly, a POA allows the agent to:
- Manage finances: Pay bills, manage bank accounts, invest funds, and handle other financial transactions.
- Manage property: Sell or buy property, rent out property, and manage repairs.
- Make healthcare decisions: If it's a durable power of attorney for healthcare, the agent can make decisions about the principal's medical care.
However, even a broad POA typically cannot:
- Change a will: This requires a formal legal process involving the execution of a new will or codicil (amendment).
- Give away assets: While a POA may allow the agent to manage assets, it usually doesn't grant the authority to donate significant portions of the principal's wealth without explicit instructions.
- Make decisions that go against the principal's wishes: The agent is bound by the principal's instructions and the terms of the POA.
What Happens if Someone Tries to Use a POA to Change a Will?
Attempting to use a POA to alter a will is legally invalid and could have serious consequences. Such actions could be challenged in court, resulting in the POA being declared invalid and the agent potentially facing legal repercussions. The will remains unchanged.
How Can a Will Be Changed?
A will can only be legally altered or revoked by the testator (the person who made the will) while they are still alive and of sound mind, or through a court process after their death if there are valid grounds for contesting the will. This typically involves creating a new will, a codicil adding or amending specific clauses, or formally revoking the existing will.
Can a Power of Attorney Help in Estate Planning Related to a Will?
While a POA cannot change a will, it plays a critical role in estate planning. A well-drafted POA can ensure that the principal's affairs are managed effectively while they're still alive, minimizing potential complications for the executor after their death and ensuring that the instructions in the will can be carried out smoothly.
What if the Principal Lacks Capacity?
If the principal loses capacity (becomes unable to understand or make decisions regarding their affairs), the POA might still be effective, depending on its type (durable or non-durable). However, it still cannot be used to change the will. In such cases, a court-appointed guardian might be needed to manage the principal’s affairs, but they too, cannot alter the will.
In conclusion, while a power of attorney grants significant authority over a principal's affairs, it does not extend to the power to change a will. Separate legal mechanisms are required to amend or revoke a last will and testament. It is crucial to consult with an estate planning attorney to ensure your POA and will are properly drafted and aligned with your wishes.
