A power of attorney (POA) is a legal instrument through which one person confers authority to another to make decisions for him or her; Does this include the ability to alter a will? This is something that people usually get wrong and end up complicating things and getting to court. In this article, we will help you separate myths from facts and list all the things a POA cannot do to your will.
You may be surprised to discover that whereas power of attorney means that someone else controls your affairs this is not entirely true. Let’s look at why that is now.
What Is Power of Attorney?
Power of attorney otherwise referred to as an attorney-in-fact is a legal instrument which provides a certain individual with the capacity to make decisions for another individual known as the principal. Such decisions may be on financial issues or on health care issues, for instance.
POAs are of different categories namely general, full, durable and limited ones and each of them has a unique scope of authority. A POA is an ongoing power and is exercisable as long as the principal is alive and includes mentally healthy too A POA terminates with the death of the principal or if the POA was revoked by him.
POA Cannot Alter a Will
A power of attorney cannot change or cancel a will even if the authority which is given to the agent is full and complete. A POA may enable the agent to handle the principal’s property, pay some bills or even approve medical treatment but it does not control the principal’s will.
A will is another important and unique legal instrument specifying how the testator’s property will be divided and only the testator has the right to change it provided he or she has the capacity to do so. Once the testator dies, the power of the POA gets terminated but the will and the wishes of the testator get implemented by the executor as per the provisions of the will.
Thus, despite how much control may be granted to the agent under the POA, he or she cannot alter or affect the testator’s will in any manner legally.
But Power of Attorney Can Still Affect an Estate
While a POA cannot alter a will, a POA can take a large influence over the issue of an estate while the principal is still alive. A POA agent can handle financial matters, move property or change who is to benefit from the accounts which in essence may affect the worth or the shares of the estate.
For instance, an agent might sell land or invest in various items; these could reduce the estates’ worth before the execution of the will. However, these actions are constrained by the legal requirement for an agent in such a position that he or she cannot try to prejudge the management of the estate, in a way that is unlawful to the principal.
Exceptions or Related Legal Actions: What Can a Power of Attorney Do?
It is thus important to empower the POA since even though he/she cannot alter a will, he/she can affect other aspects of estate planning. For instance, the POA agent is empowered to pay bills, invest, disperse funds, sell property or make healthcare decisions.
They can also change or even replace the beneficiary bars on certain accounts or even insurance policies provided the change is allowed by the principal. But all these actions have to be taken in the principal’s interest and should strictly adhere to the legal provisions. At times controversies may develop between the principal and the agent concerning the actions taken which in this case lead to court intercession.
Also, the principal can also revoke or restrict the powers of the agent during his/her exercise of the authority at any time when the principal is mentally capable. However, a POA has considerable power in their hands yet; there are legal and ethical bounding measures put in place to ensure that the authority they hold does not turn to dictatorship.
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The Role of a Power of Attorney
A power of attorney (POA) also known as a letter of attorney grants someone an authority to act for another (the principal) in certain aspects of life. An appointed agent must have the authority to act on his/her principal’s behalf and transact on his/her behalf when the latter fails to do so. The authority of an agent depends on the type of the POA and the directions given by the principal.
Some key responsibilities of a POA agent include:
- Financial management: Pay bills, banking accounts and managing the investments.
- Real estate transactions: To transact business of buying or selling properties in the name of the principal.
- Healthcare decisions: Assuming medical decisions where the principal is unable to decide so in cases of the healthcare POA.
- Legal matters: The execution of legal documents on behalf of the principal, appearance in court on his/her behalf among other activities.
Making Changes to a Will
A person can also alter or revoke a will at any time of his or her choice depending on the mental capacity of that person. This means they have to know everything that is in the change they are implementing to the.fields. If the person wishes to alter the will, he or she can write a codicil which is an addendum to the will or prepare an entirely new will.
According to the legal procedures it is important that any changes made should be testified, signed, etc, so as to give credibility to the document. If this is not done then there is likely to be an argument in the court or the will is likely to be rejected after the death of the person in question.
When Capacity Is Intact Can a Power of Attorney Change a Will?
No matter whether the principal has received legal capacity to make a will or not, his agent cannot alter it. Only the principal himself and herself has the legal ability to alter his or her will while still in a sane state to do so.
A power of attorney on the other hand extends to matters that are committed during the lifetime of the principal, for instance in management of property or in making of health care decisions and the power of attorney does not vest on the affairs of the will and anything that happens after the lifetime of the principal.
The same would be unlawful if an agent attempted to change the terms of the will which makes it susceptible to legal suit. can a power of attorney change a will.
When Capacity Is Compromised Can a Power of Attorney Change a Will?
Indeed, a power of attorney (POA) does not have the power to alter a will, even if the principal has deteriorated capacity. What a POA gives a person is the power to act on behalf of another but does not involve any change of legal documents pertaining to estate planning such as a will.
If a person’s capacity is impaired they are usually not able to make the legal changes themselves anymore. In such circumstances, the amendments to a will may be made by only a solicitor, a power of attorney or a legal representative if the testator is deemed to lack competence to manage his or her affairs.
However, the POA agent cannot amend the will; his/her function is confined in operating under the POA paper in relation to the principal’s status. That is why any actions that would be made in an attempt to alter any will in such situations would be unlawful and such individuals might face severe consequences under the law.
CONCLUSION :
While a power of attorney plays a crucial role in managing a person’s affairs during their lifetime, it cannot change a will, regardless of the principal’s capacity. The authority of a POA ends with the principal’s death or upon revocation, and only the principal can alter their will while they are mentally competent. Understanding these limitations helps protect your estate and ensures that your wishes are honoured. For specific concerns, consulting with an estate planning attorney is advisable.
People also ask
Can a power of attorney change a will in Canada?
No, a power of attorney cannot change a will in Canada. Only the testator can modify their will.
Can power of attorney change a will in Texas?
No, a power of attorney cannot change a will in Texas. The authority to alter a will rests solely with the testator.
Can a power of attorney change a will in Scotland?
No, a power of attorney cannot change a will in Scotland. The testator must personally make any changes to their will.
