When it comes to elder-care planning and how estates will be distributed after death, the power of attorney is one of the most important factors in legal proceedings.
As well as wills and trust documents, the power of attorney is vital for arranging the affairs of the person in question.
As the name suggests, a power of attorney has a great deal of power over assets surrounding estates.
But, what about changing a will? Can a power of attorney change a will? The short answer is, no. However, they can make changes to certain assets associated with the estate mentioned in a will.
Someone with power of attorney has quite a lot of authority outside of will revisions. This document allows an agent, or attorney, the ability to act on behalf of the grantor.
This is also known as the principal. Under POA, an agent does have some power such as paying bills on another’s behalf or managing the finances or medical care of another individual.
But, when we consider the last will and testament, only the person who created the document is prohibited from making any changes.
Continue reading as we discuss the limitations a power of attorney has and why they can not change the will of another person.
Power Of Attorney: What Is It?
Before we discuss the dos and don’ts of a power of attorney, let’s discuss what this actually is.
Power of attorney is when you or someone assigns another person to have authority over legal binding decisions on your or another person’s behalf.
This can range from making decisions on medical care, managing financial assets, signing different contracts, and so on.
A power of attorney can access confidential materials and their decisions are as binding as if you had made them yourself.
If you give someone power of attorney, you are allowing them to act in specific ways or do specific things with your best intention at heart.
For instance, in general, the IRS will not accept any taxes that are filed by a third party. Law states that you should file your taxes yourself.
That is unless you have assigned power of attorney to a tax preparer. If so, this gives that person the authority to file your taxes on your behalf instead of completing them yourself.
Such practices are relatively common. If this is a chosen option, then the tax preparer will be able to view a client’s confidential IRS and bank records.
Of course, this is required if they are to file that person’s tax returns.
Nevertheless, this authority is not widespread. A tax preparer is not allowed to sign contracts in another’s name or even sell that person’s vehicle. Their authority is simply limited to reviewing the client’s finances and filing all relevant documents with the IRS.
There are some scenarios where you can assign what is referred to as ‘a general power of attorney.” This is a type of durable power of attorney. All in all, there are three types with the remaining two being special power of attorney and healthcare or medical power of attorney.
If a person has a general power of attorney, they can essentially make any decision on your behalf when the power of attorney assignment is still valid.
General assignments are usually made to a trusted family member or a long-time friend or companion. This is if they are going to be incapacitated or unable to reach.
Why Can’t A Power Of Attorney Change A Will?
Each state has its own specific laws when it comes to power of attorney. That is why you should not read this article as legal or financial advice as many aspects and factors can determine what a power of attorney can and can not do.
That being said, most jurisdictions follow the following basic guidelines and concepts. We highly recommend that you seek an attorney before you make any decisions about your personal affairs.
If you want to write a valid will, it is not very difficult. In fact, it is a lot easier than many believe. There is just one legal requirement. This is that you must be of sound mind when making your decisions and dispositions.
This means that you are legally competent to make the necessary decisions that will be written down in your will.
For the majority of states, a will does not have to be written by an attorney. It doesn’t even need to be witnessed or notarized by an attorney. No will needs to follow a standard form or structure.
While having an attorney present can make it somewhat easier to enforce your wishes in your will, it is not necessary.
Once the will is written and it is valid, a power of attorney has no authority to change or rewrite it.
Even if a grantee says otherwise in their power of attorney assignment, the power of attorney is still unable to change a will. If a will is written by a power of attorney, it will be deemed invalid.
If a will is found to be invalid, a power of attorney does have the authority to challenge it and what it contains. But, they must show due cause as to why the will is invalid and can not be enforced. This can be in its full form or in part.
To challenge a will, a power of attorney would usually need to show evidence that the individual who made it was not in their right mind at the time. Therefore, they were not competent enough to make their own choices or in a position to take any legally binding actions.
There are very rare occasions known as ‘duress.’ An example would be someone whose life is being threatened. They would be deemed mentally competent to amend their will but even then, any changes would be invalid.
But, as we stated, this is very rare as the person would typically need to be deceased before any challenges can be made on the validity of the will.
A power of attorney does not have the right or authority to change a person’s will under any circumstances. While they have the power to oversee financial obligations and help with medical care, the changing of a will is not a possibility.