Can a Power of Attorney Change a Will?
The short answer is generally no, a power of attorney (POA) cannot change a will. This is a crucial distinction that often causes confusion. While a POA grants significant authority to manage an individual's affairs, it does not extend to altering legally binding testamentary documents like a will. Let's delve deeper into the reasons why and explore related concepts.
What is a Power of Attorney?
A power of attorney is a legal document that authorizes one person (the agent or attorney-in-fact) to act on behalf of another person (the principal) in specific legal or financial matters. This authority is granted by the principal and can be limited in scope (e.g., managing finances only) or broad (covering a wide range of decisions). A POA is typically used when someone is unable to manage their own affairs due to illness, incapacity, or absence. Crucially, a POA ends upon the death of the principal.
What is a Will?
A will is a legal document that outlines how a person wishes to distribute their assets after their death. It dictates who inherits property, money, and other possessions. Unlike a POA, a will only comes into effect after the testator (the person making the will) passes away. It requires strict legal formalities to be valid, including proper execution and witnessing.
Why Can't a POA Change a Will?
The fundamental reason a POA cannot change a will is because the two documents serve entirely different purposes and operate under different legal frameworks. A POA governs actions taken during the principal's lifetime, while a will governs the distribution of assets after the principal's death. Giving someone the power to manage assets during life doesn't automatically grant them the power to alter how those same assets will be distributed after death. Changing a will requires a separate, distinct legal process involving new documentation and often witness signatures.
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. The will remains unchanged, and any actions taken under the POA to alter the will can be challenged in court. This could lead to legal battles and potentially invalidate actions undertaken by the attorney-in-fact.
Can a Power of Attorney Manage Assets Mentioned in a Will?
Yes, while a POA can't change a will, it can manage assets that are mentioned in the will during the principal's lifetime. For instance, if the will bequeaths a specific house to a beneficiary, the POA can manage the property (e.g., pay property taxes, make repairs) before the principal's death. However, the POA cannot alter the beneficiary named in the will.
What if the Principal Lacks Capacity to Change Their Will?
If the principal becomes incapacitated and cannot change their will themselves, a court-appointed guardian or conservator might be necessary to manage their affairs, including possibly initiating a legal process to alter the will. This differs significantly from the powers of an attorney-in-fact under a standard POA.
Can a Durable Power of Attorney Change a Will?
No. Even a durable power of attorney, which remains in effect even if the principal becomes incapacitated, cannot alter a will. The limitations discussed above still apply.
In conclusion, a power of attorney is a tool for managing affairs during life, whereas a will dictates asset distribution after death. They are separate legal instruments, and a POA cannot supersede the legal requirements for changing a will. If you have concerns about your will or power of attorney, consulting a legal professional is strongly recommended.
